Tale Ram vs Hans Raj

J.V. Gupta, J.

This order will dispose of Civil Revision Petitions Nos. 887 to 890 of 1978, as the question involved is common in all the cases.

No one is present on behalf of the decreeholder respondent in spite of the issuance of the actual date notice.

Sant Lal got a decree for possession by way of preemption on May 8, 1969. In the said suit, the vendee Tale Ram took the plea that, in fact, his father Hari Ram who was admittedly the tenant on the suit land under the vendor was the real vendee and that the sale in his favour was benami. However, this plea raised by him was turned down by the trial Court and the suit was decreed on merits in favour of the plaintiffpreemptor. In the appeal filed by Tale Ram, his father Hari Ram died. However, ultimately, the appeal was dismissed and the decree of the trial Court decreeing the plaintiff''s suit was maintained. The second appeal filed in this Court by the vendee Tale Ram was also dismissed. The decreeholder sought the execution of the decree whereas Tale Ram judgmentdebtor, filed objections under section 47 of the Code of Civil Procedure inter alia on the ground that the decree was not executable in view of the provisions of section 17A of the Punjab Security of Land Tenures Act, 1953 (hereinafter called the Act). According to him, his father Hari Ram who was admittedly the tenant on the suit land under the vendor at the time of the sale had died during the pendency of the appeal against the decree of the trial Court and, therefore, in that situation, on his death, he became the tenant on the suit land and, thus, no decree could be passed against him; he being the tenant on the suit land. According to him, even if this objection was not taken by him in appeal, he was entitled to raise the same at the time of the execution of the decree passed against him. The objection petition was contested by the decreeholder on the ground that at the time of the passing of the decree by the trial Court, the objector was not holding the status of a tenant and as such, the objection petition could not be looked into at that stage by the executing Court as it could not go behind the decree. In any case, the said objection was available to the objector in appeal and since no such objection was taken then, on that ground also, he was debarred from raising the same in execution of the decree. The executing Court framed the necessary issues and ultimately came to the conclusion that it could not go behind the decree. The title in the suit property had already passed to the decreeholder on deposit of the preemption money and, therefore, the plea that the decree was a nullity and not executable stood rejected. Consequently, the objection petition was dismissed. Dissatisfied with the same, the vendeejudgmentdebtor Tale Ram has filed these four petitions in this Court.

The learned counsel for the petitioner contended that section 17A of the Act, inter alia provides that certain sales of the tenancy lands are not preemptible. It contemplates that the sale of land comprising the tenancy of a tenant made to him by the landowner shall not be preemptible under the Punjab Preemption Act, 1913 and no decree of preemption passed after the commencement of the Act in respect of any such sale of land shall be executed by any Court. Thus, argued the learned counsel, in view of the said provision, the objector being the tenant on the suit land after the death of his father Hari Ram, the decree against him was not executable. In support of the contention, the learned counsel relied upon Chandan Singh v. Lal Singh, 1973 PLJ 767; Roshanbeg Singh v. Harmitter Singh, 1976 RLR 409 and Kehar Singh v. Shankar, 1976 PLJ 186.

After hearing the learned counsel for the petitioner, I find force in the contention raised by him.

It was held by the Division Bench of this Court in Chanan Singh''s case (supra) as follows :

``Section 17A of the Punjab Security of Land Tenures Act takes away the right of preemption where the sale is to a tenant and a vendee can defeat the preemption suit on that ground. But if he does not choose to do so at the stage of the suit and a decree is passed without adjudication of the claim of the vendee as a tenant, the decree, according to section 17A, which in the very nature of things has been passed after the commencement of the Punjab Security of Land Tenures Act, cannot be executed. Therefore, the bar is a statutory bar and being a bar to the execution of the decree, it will prevail over the constructive plea of res judicata.''''

It was further held in the aforesaid case,

``In the case of vendeetenant who does not plead his tenancy when a suit for preemption is filed and suffers a decree, it is open to such a tenant to raise the plea of the bar under Section 17A of the Punjab Security of Land Tenures Act at the stage of execution of the decree that has been passed against him in the preemption suit.''''

Somewhat similar matter came up for consideration before this Court in Kehar Singh''s case (supra), where during the pendency of the preemption suit, the tenant had died and his tenancy rights were inherited by some of the vendees. It was, therefore, held in the abovesaid case that the status of some of the vendees who acquired tenancy rights by succession during pendency of preemption suit became that of tenants of land and they could successfully resist the suit qua their shares.

In view of the authoritative pronouncements made by this Court in the aforesaidmentioned cases, the view taken by the executing Court is not sustainable. Consequently, all the revision petitions succeed and are allowed. The impugned orders are set aside and the objection petition filed on behalf of the petition is allowed with no order as to costs.