Ram Krishan vs Ratti Ram .

J.V. Gupta, J.

This is plaintiffpreemptor''s second appeal whose suit for possession by preemption has been dismissed by both the Courts below.

Smt. Sunder sold the agricultural land measuring 24 Kanals vide sale deed dated 6.6.1980 in favour of Ratti Ram defendant No. 1 to the extent of 2/3rd and Ishama Ram defendant No. 2, 1/3rd share for a sum of Rs. 49,000/. This sale was preempted by two rival preemptors (i) Ram Kishan (present appellant) and (ii) Mangat Ram and Gurbit Singh. Both the suits were tried together.

Ram Kishan plaintiff had claimed superior right of preemption on account of his being the brother of vendor Smt. Sunder. He also claimed to be co sharer in the Khewat whereas the other rival preemptors claimed superior right of preemption claiming to be the sons of the vendor. The vendees contested the suit inter alia on the ground that the sale being by a female, was covered by Section 15(2) of the Punjab Preemption Act, and, therefore, the plaintiff had no superior right of preemption. The trial Court dismissed both the suits holding that both preemptors had no prior right of preemption on the basis of relationship, in view of the provisions of Section 15(2) of the Punjab Preemption Act. That being so, plaintiff Ram Kishan also could not claim his right of preemption on the basis of being a cosharer in the khata as provided under Section 15(1) of the Act. As a result of this finding, both the suits were dismissed. Dissatisfied with the same, Ram Kishan plaintiff filed the appeal. The learned District Judge affirmed the findings of the trial Court and thus maintained the decree dismissing the plaintiff''s suit, vide judgment dated. 15.3.1984.

During the pendency of this appeal, the Supreme Court vide judgment in Atam Parkash v. State of Haryana and others, 1986 AIR 859 : 1987 RRR 116 (SC), has declared whole of Section 15(2) and clauses First, Secondly and Thirdly of Section 15(1)(a), First, Secondly, and Thirdly of Section 15(1)(b) and clauses First, Secondly, and Thirdly of Section 15(1)(c) as ultra vires of the Constitution. In view of the said judgment of the Supreme Court, learned counsel for the plaintiffpreemptor submitted that he being a co sharer in the Khewat is entitled to a decree because of his superior right of pre emption because Section 15(2) is no more on the statute book. The Courts below dismissed the plaintiff''s suit on the ground that the sale was by a female and, therefore, was covered by Section 15(2) and not by Section 15(1).

Meanwhile, the defendantvendees moved Civil Miscellaneous No. 177C 1986 for seeking amendment of the written statement. By virtue of the said application, the defendant wanted to plead that vide saledeed dated 12.5.1986 Isham Singh, defendant purchased the share of Ratti Ram covendee in the sale sought to be preempted and, therefore, the plaintiffpreemptor could not claim superior right being the cosharer. It was also averred therein that vide saledeed dated 10.6.1976. Isham Singh had also purchased land in the joint Khewat and on that account also he had become the cosharer in the suit land. Reply to the said application was filed on behalf of the plaintiffpre emptor Ram Kishan.

After hearing the learned counsel for the parties as regards the said applications, I do not find any merit therein, because even if the said amendment is allowed, the position of the vendeedefendant does not improve. As regards the first sale in the year 1976 the defendant never pleaded the same in the written statement because even if he would have pleaded, he could not claim any right on the basis of the said sale deed as subsequently in the sale sought to be preempted made on 6.6.1980 Isham Singh vendee joined a stranger i.e. Ratti Ram with him. The said proposition was well settled in view of the Full Bench judgment of this Court in Garib Singh v. Harnam Singh, 1971 P.L.J 579, wherein it was held that where a vendee who associates with himself in the sale a stranger he cannot resist the claim for peemption on the basis of his own qualifications or status. In that situation the vendee sinks to the level of the stranger. As regards the sale deed dated 12.5.1986, on behalf of Ratti Ram in favour of Isham Singh, co vendee is also of no consequence because of provisions of section 21A of the Punjab Preemption Act :

"21A. Any improvement, otherwise than through inheritance, or succession or made in the status of a vendee defendant after the institution of a suit for preemption shall not affect the right of preemptorplaintiff in such a suit."

In this situation, the civil miscellaneous application is disallowed.

Faced with this situation, the learned counsel for the vendeedefendants submitted that in the judgment referred to above, the Supreme Court never enlarged the right of preemption, rather it struck down Section 15(2) of the Act as a whole and part of Section 15(1) and, therefore, the plaintiffpre emptor''s suit which had been dismissed by two Courts below could not be decreed on account of his being a cosharer in the Khewat because of the said judgment which has been rendered during the pendency of this appeal. I do not find any force in this contention. In the plaint itself, the plaintiff claimed the right of preemption on the basis of his relationship as well being a co sharer whereas his right of preemption being a cosharer was negatived on the ground that the sale was covered under Section 15(2) of the Act. In this situation, the plaintiff is not claiming the right of preemption of his being a cosharer for the first time in this appeal. This was the case set up by the plaintiff in the very beginning and it has been so found by both the Courts below and could not be disputed either. As observed earlier, the right of preemption on behalf of cosharership was denied because of Section 15(2). Now the said section is no more on the statute book and the right of pre emption is only available either to a tenant or a cosharer. It is under these circumstances that the plaintiff is now seeking his right of preemption being a cosharer. Since it is not being denied that the plaintiff Ram Krishan is a cosharer in the Khata, he is entitled to a decree for possession by way of preemption.

The trial Court found that Rs. 49,000/ was the sale price whereas the vendees were also entitled for stamp charge amounting to Rs. 6,125/ registration fee Rs. 500/ and other witnesses expenses etc. Rs. 20/. Thus the total amount to be paid by the plaintiff comes to Rs. 55,645/.

As a result of the above discussion, this appeal succeeds, the judgment and decrees of the Courts below are set aside and the plaintiff Ram Kishan''s suit is decreed on payment of Rs. 55,645/. The plaintiff will deposit the said amount less 1/5th amount, if deposited earlier, on or before 30.9.1986, failing which his suit shall stand dismissed. No costs.