Vir Vikram Parkash vs Chitru and Others

Inder Dev Dua, J.—These two appeals (Regular Second Appeals Nos. 1047 and 1048 of 1961) have been bracketed together and deserve to be disposed of together because they involve identical question of law and fact.

The controversy centres round the question whether the two sales of the properties in question are pre-emptible. On 4th July, 1958, ten biswas of land in all were sold by virtue of two sale-deeds, one of them relating to two biswas and the other to eight. The price of ten biswas was Rs. 3,000. In the sale-deeds the property sold was described as agricultural land and it was expressly recited therein that the vendee was entitled to use the land in any manner Ke liked including the construction of factories. Chatru, the Plaintiff, in both the suits, claiming to be a co-sharer instituted the two suits in January, 1960, basing his claim on, his status as a co-sharer in the land and describing the subject-matter of the sale to be agricultural land. Both the suits were resisted by the vendee on various grounds including the pleas of limitation and that the land sold was comprised in industrial area and, therefore, its sale was not subject to the right of pre-emption. The Courts of first instance decreed the suits and on appeal those decrees were affirmed. In respect of issue No. 6 (and it is this issue which deals with the plea of the land being comprised in industrial area in both the suits) the trial Court came to the conclusion that though the adjacent plots of lands had been acquired by third persons for industrial purposes and that factories had also been set up thereon, the land in question could not be held to be a waste land merely because the land sold was not under cultivation at the time of the sale. On appeal, the learned Senior Subordinate Judge referred to the copy of the last Jamabandi of the year 1945-46 and of the Khasra Girdawaris of the years 1958-59 and 1959-60 and then after observing that as the sale took place on 4th July, 1958 and, therefore, the nature of the land to be seen is as on the date of the sale itself, the Court proceeded to observe that even if it were to be admitted that the land was banjar quadim it still did not take it out of the category of village immovable property. The Vendee, according to the lower Appellate Court, nowhere asserted to have reclaimed the banjar qadim land. Even after referring to Khasra Girdawari for 1958-59, the Court observed that the land was uncultivated only for one crop in Kharif 1958 and the entry in Rabi 1958 showed that it had not been cultivated for two crops. From these entries, the Court inferred that the land was not banjar qadim. The vendee having not produced copies of Khasra Girdawaris prior to 1958, the Court apparently drew an adverse inference against him. The Court then considered the scope of Section 15 of the Punjab Pre-emption Act and observed that the argument that the land sold was not agricultural was of not much avail because it nevertheless retained the character of village immovable property and as such its sale was also pre-emptible. On this finding the Plaintiff''s right to claim pre-emption was affirmed but slight modification in payment of sale-price was made.

The arguments in his Court have primarily centred round the point whether the Courts below are justified in decreeing the Plaintiff''s claim on the basis of the property sold being village immovable property and also as to whether the property in question is truly agricultural land. In so far as the first part of the argument is concerned, reference has been made to the sale-deeds and also to the plaint and it has been emphasised that in both the deeds and the plaint the property has been described to be agricultural land. In the written statement an objection was raised) that the purpose of the purchase in question was for factory and that the site was also located in factory area. Even in spite of this assertion in the written statement in the replication filed by the Plaintiff there was a mere denial of the preliminary objection without making any alternative case on the basis of the land being village immovable property. On the basis of this contention, Shri Shamair Chand has forcefully argued that the Courts below have erred in law making out a new case for the Plaintiff.

"Agricultural land" as defined in Section 3 of the Punjab Pre-emption Act merely adopts the definition of the term "land" as contained in the Punjab Alienation of Land Act and "village immovable property" has been defined to mean immovable property within the limits of a village other than agricultural land. In respect of both these categories of property mentioned the right of pre-emption is governed by Section 15 of the Preemption Act. Prima facie it may seem that merely because the Plaintiff did not specifically base his claim on the property being village immovable property, the Courts below may not be considered to have committed any such illegality by determining the controversy on that basis as would justify interference by this Court, for, the right to both categories of property is governed by the same provision of law. But in this case it has been argued with a certain amount of plausibility that the area or locality in which the site in question is situated is a factory area and, therefore, it can by no reasonable stretch be described to be village immovable (property, and that if this precise plea had been taken it could have been shown that the locality in question could not reasonably be considered to be a part of any village and, therefore, the property sold could not constitute village immovable property for the purpose of the right of pre-emption. In this context it has been argued that the right of pre-emption being a piratical and aggressive right it should not be extended by liberal construction of law but should be strictly confined within clearly specified statutory limit. The contention is not wholly without substance and requires to be kept in view when considering the merits of the controversy.

On behalf of the Appellant, it is contended that the land in question can by no means be described to be agricultural land at the time of the sale. As already noticed, the definition of the term "land" as contained in the Punjab Alienation of Land Act has been adopted by the Punjab Pre-emption Act. In the Land Alienation Act, the term "land" has been defined to mean land which is not occupied as the site of any building in a town or village and is occupied or let for agricultural purposes or for purposes subservient to agriculture or for pasture and includes:

(i) the sites of buildings and other structures on such land;

(ii) a share in the profits of an estate or holding;

(iii) any dues or any fixed percentage of the land revenue payable by an inferior to a superior landowner;

(iv) a right to receive rent;

(v) any right to water enjoyed by the owner or occupier of land as such;

(vi) any right of occupancy.

The contention raised is that the land sold being in factory area and not being occupied or let for agricultural purposes or for purposes subservient to agriculture or for pasture, it cannot be considered to be agricultural land and, therefore, is not pre-emptible. In this connection great emphasis has been laid on the argument that the land has all along been described to be ban jar qadim and that in Kharif 1958 and Rabi 1959 it is described as "khali" and that only after the sale in 1959 in one harvest the entry in the revenue records is "bajra kharaba". In Rabi 1960, it is again alleged to be vacant. Another part of this argument is that since the area or the locality in which the site in question is situated has become a factory area it cannot be considered even village immovable property for such an area cannot be described to be a part of village Arangpur in which the land is stated to be situated. Whether or not a particular place is a village is, according to Shri Shamair Chand, a question of law or at least a mixed question of fact and law, and, therefore, open to consideration by this Court on second appeal. Reference has in this connection been made to a Division Bench decision of the Lahore High Court in Gopi Mal v. Mohd. Yasin 78 I.C. 443. It is in this connection again that the counsel has emphasised that had the Plaintiff made out a case of village immovable property in the pleadings, proper issue would have been framed, and, the Appellant would have adduced evidence on the record to show that the property in question not being in village was not village immovable property. The Appellant''s counsel has also urged that the Plaintiff is not a co-sharer now) because he is no longer the owner of any share, with the result that he has no locus standi to institute the suit. From the denial of the Plaintiff''s status as a co-sharer, Shri Shamair Chand also seeks to support another argument, namely, that the Plaintiff must be deemed to be a seller along with the vendor and that he cannot pre-empt the sale in respect of his own share which must be deemed to have been sold to the vendee.

On behalf of the Respondent, however, stress has been laid on the contention that the finding of the property being immovable property is a finding of fact not assailable on second appeal and Deity Partabhiramaswamy v. S. Hanyamayya, etc. AIR 1959 S.C. 57, and Paras Nath Thakur v. Smt. Mohani Dasi etc. AIR 1959 S.C. 1204, have been cited. It has also been urged that there was no plea and no issue on the point of the Plaintiff not being a co-sharer and, therefore, this precise point should not be allowed to be raised on second appeal.

Now, the right of pre-emption relating to sale of agricultural land and village immovable property is based on considerations which are obviously inapplicable to sales of land for industrial purposes like the construction of factory as is the case in the present controversy. Of course, if the law is absolutely clear and is attracted on a plain reading of its language in a given case, then whatever its effect or impact on the industrial progress of the country, it must be given effect, but when the law is couched in language which is unprecise and capable of both wide and narrow meaning requiring interpretation, then the Court has to construe it in the background of the underlying object of the statutory provision and its impacts and consequences on the nation''s progress and the economy of the country as a whole. The law-giver has, in my humble opinion, also to be imputed an intention to keep in view the progress and welfare of the people. Looking at the question posed in this background, I am inclined to take the view that a factory area is not intended to fall within the expression "village immovable property" for the purpose of the operation of the law of pre-emption. No precedent or principle has been cited before me for taking a contrary view. In this view of the matter, the plea of village immovable property Having not been taken in the case, the Court below, was, in my view, wrong in law in determining the controversy on that basis.

Coming to the question whether or not the land sold is agricultural land it may again be stated at the outset, that no precedent has been cited in which a site described as; banjar qadim situated in an area which is fast developing into an industrial area was held to constitute agricultural land for pre-emption purposes, merely because occasionally some; bajra kharaba was stated to have grown on it and a sale of such a site held pre-emptible. In considering the question canvassed before me it would be pertinent to take into account the object of the law of pre-emption. After the enforcement of the Constitution with the fundamental right to hold and own property guaranteed, the right of preemption and sale of agricultural land has to be considered in the background of the constitutional guarantees. So considered, I am inclined, as at present advised, to take the view that the small bit of land described in revenue papers as banjar kadim, situate in a factory area and sold for the purpose of constructing factory thereon cannot fall in the category of agricultural land so as to attract the law of pre-emption on the sole ground that on an occasion or two bajra khardba was stated to have been grown on it. Agricultural land the sale of which can be considered to have been intended to be outside the constitutional guarantees and within the purview of the definition for the purpose of pre-emption must be occupied and let for agricultural purposes, etc., from the long range and broad point of view, and a small bit like the one in question can hardly be considered to have been intended to fall within this category. That to bring it within this category would obstruct industrial progress of the nation is also not wholly irrelevant in interpreting the meaning of the expression ''agricultural land''.

In the view that I have taken I do not think it is necessary to express any considered opinion on Shri Shamair Chand''s contention about the Plaintiff not being a co-sharer.

In the result both these appeals succeed and allowing the same I set aside the judgments and decrees of the Courts below and dismiss the Plaintiff''s suits. The parties are, however, directed to bear their own costs throughout.