Sher Singh (deceased) Rep. by L.Rs. and anr. vs Prithi Singh and others

G.R. Majithia, J.

This judgment will dispose of R.S.A. Nos. 1493, 1494 and 1495 of 1984 as common questions of law and facts are involved and these are being disposed by a single judgment. The unsuccessful plaintiff preemptors have come up in regular second appeal against the judgment of the first appellate Court which negatived their claim for preempting the suit land.

The facts necessary for the decision of these appeals are not in dispute and may be stated thus : In R.S.A. 1493 of 1984 arising out of Civil Suit No. 434I of 7.9.1981, Sunder Lal son of Tulsi Ram landowner sold 88 Kanals 14 Marlas of land to Pirthi Singh, Ram Kishan, Dhupa, Om Parkash, Prem son of Sahi Ram for Rs. 66,000/ vide saledeed dated June 16, 1981. In R.S.A. 1494 of 1984, arising out of Civil Suit No. 432I of 7.9.1981, the same landowner sold 27 kanals of land to Mohinder Singh, Sunehra Singh, Prem Singh for Rs. 20,500/ vide sale deed dated May 14, 1981. In R.S.A. No. 1495 of 1984, arising out of Civil Suit No. 433I of 7.9.1981 the same landowner sold 16 Kanals of land to Sahab Singh, Kitab Singh Satbir Singh and Balbir Singh. In the first suit Sher Singh and other plaintiffs seek to preempt the land in its entirely and in the second and third suits, 8 Kanals out of 16 Kanals and 39 Kanals and 19 Marlas out of 88 Kanals and 14 Marlas respectively, purchased by the defendantvendees on the ground that they having got a preferential right of preemption as they were in cultivating possession of the land as tenants under the vendor prior to the impugned sales of the suitlands. The defendantvendees resisted the suits by denying that the plaintiffs were in occupation of the suitland as tenants under the vendor. They also pleaded that the plaintiffs were estopped from filing the suit by their acts and conduct; that the suits are bad for partial preemption. On the pleadings, the following issues were framed in Civil Suit No. 432I titled Sher Singh and others v. Mohinder Singh and others :

(1) Whether the plaintiffs have superior right of preemption. If so to what effect ? OPP.

(2) Whether the defendant vendees have incurred the expenses on stamps and registration. If so, to what effect ? OPD.

(3) Whether the plaintiffs are estopped to file the present suit by their own act and conduct. If so, to what effect ? OPD.

(4) Whether the suit is bad for partial preemption. If so to what effect ? OPD.

(5) Relief.

The same issues were framed in the other two suits.

The learned trial Judges decreed the suits. On appeal, the learned lower appellate Court reversed the finding of the trial Court under issue No. 1 and held that the plaintiff preemptors had failed to prove that they were in cultivating possession as tenants under the owner at the time either prior or subsequent to the impugned sales of the suitlands.

The principal question which arises for determination is, whether the plaintiffpreemptors were in cultivating possession of the suitland as tenants under the landowner (vendor) at the time of impugned sales of the suit lands and thereafter till the passing of decree in the preemption suit by the trial Court on December 13, 1983. The relationship of landlord and tenant comes into existence as the result of an agreement, express or implied. It may be implied from the acts and conduct of the parties which indicate that the landlord intends to divest himself of the possession of the premises and that the tenant intended to assume possession thereof. One of the most important circumstances from which this inference may be drawn is the payment of rent, for although rent is not an essential, it is a normal incident of tenancy, and the fact that a person in possession of the premises paid rent to the owner thereof indicates to an extent at least that the relationship of landlord and tenant exists between the parties. In the present case, there is no evidence that any rent was over paid to the landlord (vendor). The facts proved on the record do not establish that the preemptors came in possession of the suitlands with the consent of the landlord. In the Jamabandi for the years 196970 (Exhibit D. 2), 197374 (Exhibit D. 3), 197879 (Exhibit D. 4) the landowner was recorded as in selfcultivating possession of the suits lands. If a thing or state of things is shown to exist an inference of its continuity can be drawn. The vendor entered into agreement of sale with the vendees on November 6, 1980, and the sale deeds were executed in May 1981 and June 1981. On the date of agreement of sale, the vendor was in possession of the disputed land. Even the khasra girdawari entries indicated that the vendor was in possession. An application was moved on November 14, 1980, by the plaintiffpreemptors for correction of Khasra girdawari entries. The correction was ordered by Assistant Collector IInd Grade by order dated July 29, 1981 and the order was affirmed on appeal. However, the vendees were not permitted to join the proceedings and their application for becoming party to the application for correction of Khasra girdawari was declined. The preemptors contested the claim of the vendees for joining the proceedings. Any order passed in those proceedings will not bind the vendees. Assuming that the preemptors were shown in cultivating possession of the suitland after 1980, it will be not establish their claim that they entered into possession as tenants. The learned first appellate Court after examining the entire evidence, documentary and oral, found that the preemptors had failed to prove that they were in cultivating possession of the suitland as tenants under the landowner before or subsequent to the impugned sales of the suitlands. This is a finding of fact based upon appraisal of evidence and is not open to challenge in second appeal. Even otherwise, the material on record does not establish the claim of the preemptors.

Resultantly, the appeals are dismissed. However, there will be no order as to costs.

Appeals dismissed.