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PETITIONER: BHAGWAN DAS (DEAD) BY LRS. & ORS.

       Vs.

RESPONDENT: CHET RAM

DATE OF JUDGMENT: 16/10/1970

BENCH: GROVER, A.N. BENCH: GROVER, A.N. SHAH, J.C. HEGDE, K.S.

CITATION:  1971 AIR  369            1971 SCR  (2) 640  1971 SCC  (1)  12  CITATOR INFO :  F          1975 SC1869  (1,3,5)  RF         1977 SC1206  (3)

ACT: Punjab  Pre-emption Act (1 of 1913), s. 15(1) (a)  Fourthly- Sale of land-Tenant dispossessed and tenancy terminated-Suit for possession by pre-emption-Maintainability.

HEADNOTE: The  appellants  purchased certain lands and  filed  a  suit against the respondent, who was the tenant-at-will under the vendor, for ejectment The suit was decreed.  The  appellants entered  into possession and the tenancy of  the  respondent was determined.  Thereafter, the respondent filed a suit for possession by pre-emption under s. 15(1) (a) Fourthly of the Punjab Pre-emption Act, 1913 which provides that a right  of preemption vests in a tenant who holds, under tenancy of the vendor the land or property sold or a part thereof.  It  was contended  that  it was sufficient if the  plaintiff  proved that  he was a tenant under the vendor ,on the date  of  the sale. HELD:     The  well-established principle being that a  pre- emptor  must maintain his qualification to preempt upto  the date  of  the  decree for  possession  by  pre-emption,  the Legislature cannot be attributed the intention of giving the tight  to  a  tenant who has  been  dispossessed  and  whose tenancy  has  been determined either before  or  during  the pendency  of  his suit, claiming the right  of  pre-emption. This   is  particularly  so  as  the  statutory   right   of presumption  is one which attaches to the land and is not  a mere personal right. [641 H; 642 A-B, F-G; 643 A-B] Hans  Nath v. Ragho Prasad Singh, 59 I.A. 138, Thakur  Madho Singh v. Lt.  James R. R. Skinner, I.L.R. [1942]  23  Lah. 155, Faiz Mohammad v. Fajar Ali Khan, I.L.R. [1944] 25 Ladfl 473  and Surjit Singh v. Gurnam Singh, (1964)  P.L.R.  1063, referred to. Ramji  Lal v. State of Punjab, (1966) 68 P.L.R. 345  (F.B.), approved. Kashmiri  Lal v. Chuhar Ram, (1970) 72 P.L.R. 325 and  Sohan Singh v.  Udho Ram, (1967) P.L.R. 414, over-ruled.

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JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 192 of 1970. Appeal by special leave from the,, judgment and order  dated December  15, 1969 of the Punjab and Haryana High  Court  in R.S.A. No. 1949 of 1968. S.   C.  Manchanda,  S.  K. Mehta, K.  L.  Mehta,and  K.  R. Nagraj, for the appellant. Rameshwar  Dial, S. K. Bagga, S. D. Sood and S.  Bagga,  for the respondent.       641 The Judgment of the Court was delivered by Grover,  J. This is an appeal by special leave from a  judg- ment of the Punjab & Haryana High Court. In December 1966 Labhu Ram who was the owner of the land  in dispute sold the same in two lots to Bhagwan Das (do,ceased) now  represented  by his legal representatives  and  others. The  lands mentioned in clauses (a) and (b) of the title  of the. plaint in the suit out of which the present appeal  has arisen   were  sold  for  Rs.  20,000/-  and   Rs.   1,000/- respectively.  The respondent Chet Ram was a  tenant-at-will of  the lands covered by the sales.  Bhagwan Das and  others filed  a  suit  against Chet Ram in the  revenue  court  for ejectment under s. 14A (i) read with s. 9 ( 1 of the  Punjab Security of Land Tenures Act 1953 which was decreed on  July 31, 1967.  On August 31, 1968 Bhagwan Das and others entered into  possession of the aforesaid lands after evicting  Chet Ram  by virtue of the decree for eviction  obtained  against him. After  his eviction Chet Ram the present respondent filed  a suit  for  possession of the lands which  were  the  subject matter of sale by pre-emption under s. 15(1)(a) FOURTHLY  of the  Punjab  Preemption Act, 1913, (Punjab Act 1  of  1913), hereinafter called the ’Act’,.  By that provision the  right of  pre-emption has been declared to vest in the tenant  who holds under tenancy of the vendor the land or property  sold or  a part thereof.  It was admitted before the trial  court that  the respondent was a tenant before July 31,. 1967  and that  before  the institution of the  pre-emption  suit  his tenancy had been determined.  The trial court dismissed  the suit.   On appeal the learned Additional District Judge,  in view of certain decisions of the Punjab High Court,  allowed the appeal and decreed the suit.  The judgment was upheld in second appeal by the High Court. The sole question for determination is whether a person  who has ceased to hold the land sold as a tenant can succeed  in a  suit  for  possession by pre-emption  under  s.  15(1)(a) FOURTHLY. The Punjab & Haryana High Court in Kashmiri Lal & Others  v.  Chuhar Ram(1) had expressed the view that  in  a suit  based  on  a  right under  the  aforesaid  clause  the plaintiff  was required to prove only that he was  a  tenant under  the  vendors on the date of the sale and not  at  any time  thereafter as he could not remain a tenant  under  the vendors after they had sold the property.  In certain  other judgments  delivered by learned single judges of the  Punjab High  Court it had been recognised that the rule was  firmly established  in the law relating to pre-emption that a  pre- emptor  in order to succeed must have a right  to  pre-empt not only at the (1) Letters Patent Appeal No. 71 of 1965 decided on November 19,1969; (1970), 72 P. L. R. 325. 642 time of sale but also at the institution of the suit and the

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passing  of the decree by the trial court.  In other  words, the pre-emptor’s right should subsist up to the date of  the passing of the decree and if he lost that right at any  time before  the  decree was granted his suit must  fail.   These learned  judges of the High Court, however, considered  that the  language  of s. 15 (1) (a). FOURTHLY ,showed  that  the legislature  intended  to  depart  from  the  well   settled principle  mentioned before and all that has to be  seen  is whether the plaintiff was a tenant of the vendor on the date of sale (see Sahan Singh v. Udho Ram & Others(1). In Hans Nath & Others v. Ragho Prasad Singh (2) it was  laid down by the Privy Council that the decisive date as  regards the right of a pre-emptor to pre-empt the sale was the  date of  the decree.  A. full bench of the Lahore High  Court  in Thakur  Madho Singh & Another v. Lt.  James R. R. Skinner  & Another(1) while considering the relevant provisions of the Act applied this rule to a case where a vendee had  improved his  status during the pendency of the pre-emption suit  and held that a vendee could de-feat the right of a  pre-emptor by  improving his status at any time before the  passing  of the  decree.  The right of pre-emption is a weak one and  is liable  to  be  defeated by, all  legitimate  means  at  the instance  of  a vendee against whose contract an  inroad  is being  attempted  by the pre-emptor.  The vendee is  on  the defensive  and is entitled to arm himself with a  shield  in order to protect his right.  The pre-emptor is an  aggressor and  as he wishes to dislocate the vendee he must show  that the  superior right of pre-emption which he had at the  date of  the  sale continued to remain superior at  all  relevant times:  vide  Faiz Mohammad v. Fajar Ali Khan  &  Another(1) (Full  Bench).   In the latest full bench  decision  of  the Punjab  High  Court in Ramji Lal & Another v. The  State  of Punjab & Others(-) the rule that a pre-emptor must  maintain his  qualification to pre-empt upto the date of  the  decree was recognised as well settled. ’In  the  presence of the above principle  which  is  firmly entrenched  in  the law of pre-emption it  is  difficult  to conceive that the legislature intended to depart from it  in s. 15 (1) (a) FOURTHLY nor has any reason been suggested for doing  so.  The language employed is not very happy but  the clear requirement is that the tennant- must hold the land as such.   If his tenancy, has come to an end and he  has  been dispossessed  it  can never be said that he is  holding  the land  under tenancy of any one.  The legislature can  hardly be attributed the intention of giving the right to a tenant, who has been dispossessed and whose tenancy has been (1)  [1967] P. L. R. 413. (2)    59 I.A. 138. (4)  1. L.R. [1944] 25 Lah. 473. (3)  1. L. R. [1942] 23 ILah. 155. (5) (1966) 68 P. L. R. 345.             643 determined either before or during the pendency of the suit, to  obtain a decree for possession by pre-emption.  This  is particularly so as the statutory right of pre-emption is one which attaches to the land and is not a mere personal right. There  could  be  no basis for  the  legislature  giving  an indefeasible  right  to  a  person  who  happens  to  be  in possession of the land sold as a tenant of the vendor.   His right is neither better nor worse than any other person  who has been conferred that right by the provisions of s. 15  of the  Act.  For instance, a co-sharer has been given a  right to pre-empt the sale of a share out of joint land by  clause (b)  FOURTHLY of s. 15(1).  If a co-sharer must  retain  his right  upto  the  date of the decree, which  he  must,  (See

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Surjit   Singh   v.  Gurnam  Singh  etc.(1)  there   is   no intelligible ground for treating a tenant differently.   The tenant  must show his right at all material times before  he can  succeed in a suit for pre-emption.  In other words  his tenancy must remain intact and he must hold the land in  his capacity as a tenant till the date of the decree. It  must be remembered that sale alone does not  and  cannot divest the tenant of his’ right to hold the land of which he is in          possession by virtue of his tenancy under the vendor. But if his  tenancy  is determined by a  decree  for eviction he loses his status of a tenant. He then does  not satisfy the first requirement of s.15(1) FOURTHLY that he is a  tenant  who holds the land. In that situation  he  cannot succeed in a pre-emption suit if the decree for eviction has been passed after the sale but before the institution of the suit  or  during  its pendency and before the  date  of  the decree.  This would be so by applying the  well  established rule which, as stated earlier, has become a part of the  law relating to pre-emption. In  the  present  case not only a decree  for  eviction  was passed  against  the  respondent but he  was  also  actually dispossessed  from the land in his tenancy pursuant  to  the decree  before  he  filed  the  pre-emption  suit.  We   are altogether unable to see how he could be granted a decree in such a suit. An  attempt was made by means of C.M.P. No. 4634  of  1970on behalf of the respondents to reopen the question of the area in respect of which the decree for eviction had been  passed on July 31, 1967. It was maintained that it related only  to certain Khasra Numbers which were covered by the first  sale shown  as  clause (a)in the heading of the plaint  and  that there  was  no  order relating to  eviction  from  the  land covered by the second sale mentioned in clause (b)  therein. This question was never raised in the courts below and as it involves an investigation into matters of (1)  (1964) P. L. R. 10623. 644 fact it was not possible to allow the same to be reopened at this stage. The appeal is allowed and the suit of the respondent is dis- missed.   In view of-the nature of the points  involved  the parties are left to bear their own costs in this Court. V.P.S. Appeal allowed 6 4 5