Sanwant Singh vs Jail Singh and Others

B.S. Yadav, J.—The material facts art that Smt. Dalip Kaur (Defendant No. 3) had purchased the suit land from Mode Singh and others. She sold it to one Smt. Jeth Kanwar (Defendant No. 2) vide registered sale deed dated 14th April, 1967. This latter sale was successfully pre-empted by Jail Singh, Defendant No. 1. The pre-emption suit was decreed on 9th October 1969. It appears that Jail Singh deposited the pre-emption amount. When he was about to take possession of the land, Sanwant Singh Appellant filed a suit for a declaration to the effect that he was in cultivating possession of the suit land since Kharif, 1957 and the various entries in the revenue papers showing the cultivation of the Defendants were wrong. He also prayed for permanent injunction as a consequential relief, for restraining Defendants Nos. 1 and 2 from interfering in his possession His ease was that he always remained in possession of the suit land as a tenant since Kharif, 1957 under the various transferees and that neither Smt Dalip Kaur nor Smt. Jeth Kanwar had dispossessed him. Stray entries in the revenue papers about the cultivation in the names of various Defendants were incorrect. The decree obtained by Jail Singh in the pre-emption suit was not binding upon him and he was not liable to be ejected in execution of that decree. Defendant Nos 4 to 9 were arrayed as in revenue papers, for some crops their names have been recorded as cultivating the land.

The suit was contested by Jail Singh and Smt Dalip Kaur. They denied all the plaint allegations and pleaded that the Plaintiff, who was a servant of Smt Jeth Kanwar, had got wrong entries made in the revenue papers It was further pleaded that the possession of the suit land was with Smt Dalip Kaur and after the sale she had delivered it to Smt Jeth Kanwar and that at the time of the said sale there was no tenant on this land.

Smt Jeth Kanwar and Defendant Nos 4 to 8 filed a joint written statement and they supported the plaint allegations

Upon the allegations of the parties the learned trial court framed the following issues:-

Whether the Plaintiff is in possession of the suit land as tenant ? If so, since what ? (When ?)

Whether the Plaintiffs entitled to the relief, prayed for ?

Under issue No 1 it held that the Plaintiff was a tenant up-to the date the suit land was sold by Smt Dalip Kaur and even thereafter he remained in possession of the suit land as a tenant till the filing of the suit He accordingly decided issue No. 1 in favour of the Plaintiff and granted a decree for a declaration to the effect that he was cultivating the suit land since Kharif, 1957. He also passed a decree for permanent injunction restraining the Defendants from forcibly dispossessing him from the land. Feeling aggrieved Jail Singh and Smt Dalip Kaur filed an appeal which was heard by Senior Subordinate Judge with Enhanced Appellate Powers, Sirsa He held that Smt. Dalip Kaur had obtained possession from her vendees and she re mined in possession of the land and that the Plaintiff become a tenant on the land from Kharif, 1968, under Smt. Jeth Kanwar Vendee. As noticed earlier, Smt Dalip Kaur had sold the land to Smt, Jeth Kanwar on 14th April, 1967. Relying upon Hukam Singh v. Hakumat Rai (1967) 69 P. L. R. 743, he further held that a successful pre-emptor was not bound by the tenancy created by the vendee after the sale in his favour. Accordingly, he accepted the appeal and set aside the decree of the trial court and dismissed the suit of the Plaintiff. The Plaintiff has now come to this Court in second appeal

At the time of admission the following question of law was framed:-

Whether in the fact and circumstances of this case, a tenant in actual physical possession of the land can be ejected in execution of a pre-emption decree and whether in these circumstances, the pre emptor is entitled to only symbolic possession or actual possession ?

The question framed pre-supposes that it relates to the tenancy created by the vendee because the tenancy of the person inducted by a vendor is not effected by a pre-emption decree. Otherwise also the learned lower appellate Court after consideration of all the documentary and oral evidence has held that the Plaintiff was induct-ed as a tenant on the suit land in Kharif, 1968 by Smt. Jeth Kanwar. That is a finding of fact binding on this Court In this respect reference can be made to Sadhu Vs. Kishni, where it was held:-

The scope of second appeal as envisaged by Section 100 of the Civil P. C and Section 41 of the Punjab Courts Act has been a matter of judicial scrutiny a number of times by this Court as well as by the final court, that is, the Supreme Court of India. The learned Counsel for the Appellant has actually made a reference in this regard to Deity Pattabhiramaswamy v. S Hanymayya, A. I R 1959 S. C 57; Madamanchi Ramappa and Another Vs. Muthalur Bojjappa, ; Bithal Dass Khanna v. Hafiz Abdul Hai, 1969 S. C. 481, and Afsar Sheikh and Another Vs. Soleman Bibi and Others, . These pronouncements, in a nutshell, lay down that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however, gross or inexcusable the error may seem to be. Nor does the fact that the finding of the first appellate Court is based upon some documentary evidence make it any the less a finding of fact. A judge of the High Court has, therefore, no jurisdiction to interfere in Second appeal with the findings of fact given by the first appellate court based upon an appreciation of the relevant evidence. Their Lordships have further observed that the only ground on which such an appeal can be said to be competent is where there is an error in law or procedure and not merely on an error on a question of fact .

Therefore, in view of the admission order in this appeal and Sadhu''s case (supra), the learned Counsel for the Appellant was not allowed to urge that the Plaintiff was a tenant en the suit land since Kharif, 1937 8. The learned Counsel for the Appellant urged that the Plaintiff had been proved to be a tenant at least from Kharif 1968, and, therefore, the Appellate Court was not justified in dismissing the Appellant''s suit According to him, if the Plaintiff had failed to prove his tenancy from, Kharif, 1957, a lessor relied i e declaring him as a tenant since Kharif, 1968 could have been passed in his favour and as he was in possession of the suit land decree for injunction could also have been passed I am of the opinion that the argument of the learned Counsel for the Appellant has no force When Jail Singh had preempted the first sale effected by Smt Dalip Kaur in favour of Smt. Jeth Kanwar, and had deposited the pre emption amount, the status of the Plaintiff as a tenant on the suit land came to an end as the tenancy in his favour had been created by Smt Jeth Kanwar vendee. In this opinion of mine I am supported by the following observations made in Hukam Singh''s cast (supra):-

As soon as the Appellant claims to be a tenant of the pre-emptor, he has to be asked as to bow he has acquired that status under the pre emptor. Tenancy can be created either by contract or by devolution of interest or by operation of law. There has, admittedly, never been any contract of lease between the pre emptor and the tenant. The pre emptor not being a successor-in-interest of the vendee (who was the original landlord of the tenant), there is no question of the Appellant acquiring the status of a tenant under the pre-emptor by devolution of interest. The only thing that remains to be seen is whether he has become a tenant under the pre-emptor by operation of any law. There is no provision in the Pre emption Act which clothes the tenant inducted by a vendee with the status of a lessee under the pre-emptor. Nor has any provision in the Protection Act extended the operation of the protection contained therein to such a person it appears that with the extinguishment of the superior title of the vendee by the operation of the pre emotion decree on payment of the price into court under Order XX, Rule 14, Coda of Civil Procedure, the inferior rights of the tenant inducted by the vendee automatically come to an end following the general principle laid down by the Supreme Court in Mahabir Gope v. Harbans Narain, A. I R. 1932 S. C. 205 and are not served by any provision of law.

The conclusions arrived at by the Full Bench have been summarised in para No 26 as follows:-

(i) The title of a pre emptor in respect of the pre-empted property accrues from the date on which payment of the purchase money and costs (if any) is made by him in accordance with the provisions of Order XX, Rule 14, of the Code of Civil Procedure;

(ii) on such title accruing to him the pre-emptor is entitled to delivery of possession of the property in question from the vendee including any person who has happened to possess the property through the vendes after the original sale;

(iii) a vendee of pre emptible property is entitled to deal with it in the same manner as a full owner, but any demise of the pro-

perty or of any interest therein created by the vendee does not a affect the rights of the pre-emptor;

(iv) a tenant inducted into pre-emptible property by a vendee after its sale in his favour does not become the tenant of the pre-emptor after title to the property passes to the latter by devolution of interest as the vendee is not the predecessor-in-interest of the pre-emptor; and

(v) the tenant inducted by a vendee of pre-emptible property does not become tenant of the pre emptor by operation of law so as to claim the protection of Section 9 of the Punjab Security of Land Tenures Act, (10 of 1953) and is, therefore, liable to be dispossessed in execution of the decree for possession against the vendee.

Hence when Jail Singh had successfully pre-empted the sale effected by Smt. Dalip Kaur in favour of Smt Jeth Kanwar and the pre emptor had deposited the pre-emption amount, the status of the Plaintiff as a tenant on the suit land had come to an end

For the foregoing reasons I do not find any force in the present appeal and dismiss the same with costs.