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PETITIONER: SHRI JANGLI & ORS.

       Vs.

RESPONDENT: SMT. BHAGWATI & ORS.

DATE OF JUDGMENT12/09/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. JEEVAN REDDY, B.P. (J) HANSARIA B.L. (J)

CITATION:  1995 SCC  (6) 140        JT 1995 (6)   679  1995 SCALE  (5)469

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This appeal  by special  leave arises from the judgment and decree  dated April 11, 1979 of the High Court of Punjab & Haryana  passed in  RSA No.532/79,  dismissing the  second appeal in limine. The controversy relates to land, measuring 48 Kanals  7 marlas  situated in  Khewat Nos.31  and  32  in Faridpur village.  The  land  originally  belonged  to  Smt. Ajudhia, the  9th respondent.  The appellant claimed to be a tenant under  her. She  admittedly suffered  money decree in Suit No.377/66  filed by  respondent Nos.1 to 3 against her. Pending suit,  the plaintiff,  got an  order  of  attachment before judgment  under Order  38 Rule  5, CPC  by which  the lands were  encumbered for the realisation of the decree, if ultimately passed.      The suit was decreed on March 20, 1968. In execution of the decree,  the said  properties were  brought to  sale  in which Kuldip Singh, the 11th respondent, became the auction- purchaser on February 15, 1976 for a sum of Rs.26,500/-. The sale was confirmed on March 21, 1978.      In the  meanwhile, one  Prabhu Dayal  entered  into  an agreement of  sale of  the said  land with  Smt. Ajudhia  on January  30,   1966  and  he  laid  the  suit  for  specific performance and the suit was decreed on October 18, 1968 and in execution  thereof he had a sale deed in his favour which was registered  on October  18, 1968.  The appellant filed a suit against  Prabhu Dayal  and Smt. Ajudhia for pre-emption under the  Punjab Preemption Act, 1918 claiming preferential right as a tenant and had a decree on May 26, 1970.      During the execution proceedings of the recovery of the money  decree   in  Suit   No.377/66,  the  appellant  filed objections under  Section 47  CPC seeking  to set  aside the sale, which  was dismissed and became final. Thereafter, the appellant filed Suit No.77/1976 for declaration of his title and for  permanent injunction. The trial Court dismissed the

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suit and  on appeal  it was confirmed. The second appeal was also dismissed  in limine  by the High Court under the order referred to hereinbefore.      The only  question is whether the appellant is entitled to a  declaration of  his title to the properties as against Kuldip Singh,  the 11th  respondent. It  is  seen  that  the appellant though  initially had  his right  as a  tenant, by virtue of  his purchase  under the  pre-emption decree,  his tenancy rights  stood merged  into his  title  as  an  owner deriving right,  title and  interest from  Smt. Ajudhia, the judgment-debtor in  Suit No.377/66.  The question is whether he  can   challenge  the   money  decree,   because  of   or independently of,  pre-emption  decree.  In  our  considered view, in  either case,  he cannot  have any  declaration  of title. As stated earlier, his tenancy rights stood merged in his title  after the  pre-emption decree  and he  became the owner. He  derived his  title from  Smt. Ajudhia,  who was a judgment-debtor in  money decree. He sought to set aside the decree by  filing objections  under Section  47 and the same was dismissed. Since this property was subject of attachment pending suit,  the decree-holders  in Suit  No.377/66 became entitled to  proceed against  the property which was rightly sold in  execution. Therein,  the 11th respondent had become the auction-purchaser  and the  sale was  confirmed  in  his favour. Thus  he acquired  the title to the property through the decree-holder.  The title  of Smt.  Ajudhia  thus  stood transferred to the 11th respondent through court decree. The appellant being  a derivative  title-holder is  bound by the decree as judgment-debtor. He cannot seek any declaration of his independent title thereof. He can no longer avail of his tenancy rights  which stood  merged in  his title held under pre-emption decree.      In this view, it is not necessary for us to go into the controversy whether  some observations  made in  Vannarakkal Kallalathil Sreedharan  vs. Chandramaath Balakrishnan & Anr. [JT 1990  (1) SC 390] need to be clarified and correct legal position stated, which would be considered in an appropriate case.      The  appeal   is  accordingly  dismissed  but,  in  the circumstances, without costs.