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PETITIONER: SUNDER SINGH AND ORS.

       Vs.

RESPONDENT: NARAIN SINGH AND ORS.

DATE OF JUDGMENT: 11/03/1966

BENCH:

ACT: Patiala and East Punjab States Union Holdings (Consolidation and  Prevention of Fragmentation) Act 5 of 2007 BK,  ss.  24 and 25-Land sought to be pre-empted exchanged for other land in  consolidation proceedings-pre-emptor’s right  to  follow the land to which his right attaches.

HEADNOTE: The  appellants  purchased  certain lands in  the  State  of Punjab and the respondents filed a suit claiming a right  of preemption  thereon.   Under  a  scheme  of   consolidation, however,  the appellants had before the filing of the  suit, been  allotted  some  other  lands  in  lieu  of  the  lands purchased by them, and they contended that the right of pre- emption  claimed by the respondents did not extend to  these lands.   The  trial  court and the High  Court  decreed  the respondents’  suit  holding  on the oasis of s.  24  of  the Patiala and East Punjab States Union Holdings (Consolidation and  Prevention of Fragmentation) Act 5 of 2007 BK  that  it was  open  to pre-emptor to follow the land which  had  been given to the vendees in consolidation proceedings in lieu of the land which was the subject matter of the sale-deed.  The appellants came to this Court by special leave.       HELD  : Section 24 when it says that the landowner  or the  tenant  at will shall have the same right in  the  land allotted to him as he bad in his original holding or tenancy clearly preserves the obligation that may be on the land  in the  nature of a disability.  The consequence  therefore  is that  the ordinary law of pre-emption under which  the  pre- emptor  his  the  right  to follow the  land  which  is  the subject-matter  of  the sale-deed becomes expanded  and  the land allotted to the landlord and tenant at will in lieu  of the  land  which may have been subject to  pre-emption  also becomes  subject  to  pre-emption in the  same  way  as  the original  holding  or the tenancy.  This  inference  is  not negatived  by the special provisions of s. 25 in respect  of leases and mortgages or other encumbrances. [866 G; 867 D-E] Shri Audh Behari Singh v. Gajadhar Jaipuria, [1955] 1 S.C.R. 70,  Bishan Singh v. Khazan Singh, [1959] S.C.R. 878  relied on.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 822 of 1963     Appeal  by  special leave from the judgment  and  decree dated  April,  7, 1961 of the Punjab High Court  in  Regular First Appeal No. 32 of 1957. Bishan Narain and B. P. Maheshwari, for the appellants  Nos.

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1-3 and 5-10. M. V. Goswami, for appellant No. 4. Bhawani  Lal, E C. Agarwala, Ganpat Rai and  P.C.  Agarwala, for respondent Nos. 1(i)-1(vi). 864 The Judgment of the Court was delivered by WANCHOO,  J.-This  is an appeal by special  leave  from  the decree  of  the Punjab High Court in a suit brought  by  the plaintiffs-respondents for pre-emption.  The appellants  are vendees to the sale which was preempted.  The facts found by the courts below are these.  The property in suit  consisted of  agricultural  land  as well as  some  baras  in  village Jalalpur.   Punnu  Singh  and Mansha  Singh  who  were  also parties to the suit as defendants sold the property in  suit on   January   15,1955  to   the   appellants.    Thereafter consolidation  proceedings  took place in this  village  and came to an end before the present suit was filed on  January 14,  1956.  Of the vendees, six had no share in the  village from  before  while  four  already had  some  share  in  the village.  As a result of the consolidation proceedings,  six of  the vendees who had no share in the village from  before were allotted other land in place of the land which they had purchased  under the sale-deed.  The other four vendees  who had some share in the village from before were allotted land in  two blocks in lieu of the land they had in  the  village from before as well as the land which they had purchased  by the  sale  deed  in  question.   The  plaintiffs-respondents instituted the suit on the basis of their being  collaterals and  co-sharers and wanted that they should be given out  of the   land   allotted  to  the  vendees   in   consolidation proceedings  such  land as they would be entitled  to  after pre-emption of the sale in question. The  suit  was  resisted by the appellants on  a  number  of grounds.   The  main  ground of defence with  which  we  are concerned  in  the present appeal was whether the  suit  was maintainable  with  respect  to  the  land  which  had  been obtained by the vendees during consolidation proceedings  in lieu  of the land which was the subject matter of  the  sale deed.   The  trial court held in favour of  the  plaintiffs- respondents  and  granted  a  decree  for  pre-emption.   On ,appeal  to  the High Court by the vendees, the  High  Court held  on the basis of S. 24 of the Patiala and  East  Punjab States  Union  Holdings  (Consolidation  and  Prevention  of Fragmentation) Act, No. 5 of 2007 Bk. (hereinafter  referred to as the Act), that it was open to the pre-emptor to follow the   land   which  had  been  given  to  the   vendees   in consolidation proceedings in lieu of the land which was  the subject matter of the sale deed.  Further in the High  Court another point was raised on behalf of four of the appellants who  had  land from before in the village and it  was  urged that in their case it was not possible to distinguish  which land had been allotted to them in place of the land sold and therefore  no  pre-emption decree should be  granted.   This argument was also rejected by the High Court, and the appeal was   dismissed.    The  High  Court  having   refused   the certificate,  the appellants applied and  obtained  ,special leave  from this Court; and that is how the matter has  come before us. 86 5 The main question that has been argued before us is that the suit is not maintainable as it is not open to the pre-emptor to  follow  the land which might have been obtained  by  the vendees  in  lieu of the land actually sold  to  them.   The answer  to this question depends upon the interpretation  of s.  24  of  the Act in the background of  the  law  of  pre-

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emption.    In   Shri  Audh  Behari   Singh    v.   Gajadhar Jaipuria,(1) this Court held that-               "The  correct legal position seems to be  that               the law of preemption imposes a limitation  or               disability upon the ownership of a property to               the  "extent  that it  restricts  the  owner’s               unfettered  right of sale and compels  him  to               sell   the  property  to  his   co-sharer   or               neighbour  as the case may be The crux of  the               whole thing is that the benefit as well as the               burden of the right of preemption run with the               land  and  can be enforced by or  against  the               owner of the land for the time being  although               the right of the preemptor does not amount  to               an  interest in the land itself The  right  of               preemption  is  an incident  of  property  and               attaches          to         the          land               itself......................." This  Court  had occasion to consider the  matter  again  in Bishan  Singh  v. Khazan Singh(2) and pointed out  that  the right  of preemption is not a right to the thing sold but  a right  to the offer of a thing about to be sold, this  being the primary or inherent right, and that the preemptor has  a secondary  right  or a remedial right to  follow  the  thing sold.   Reliance  is placed on behalf of the  appellants  on this later decision and it is stressed that the  preemptor’s remedial  right is merely to follow the thing sold,  namely, the  very property which is the subject-matter of the  sale- deed under preemption. The  later decision on which reliance is placed does not  in any  manner  affect the earlier decision where it  was  held that the right of preemption is an incident of property  and attaches  to  the land.  It is true, as held  in  the  later decision,  that ordinarily the right of the preemptor is  to follow the property which is the subject-matter of the  sale deed.   The  question which, however arises in  the  present case is whether s.24 of the Act makes any difference to this ordinary  position of the law of preemption.   That  section reads as follows:-               "A  land-owner or a tenant at will shall  have               the same right in the land allotted to him  in                             pursuance of the scheme of consolidati on as  he               had in his original holding or tenancy as  the               case may be." Clearly the effect of this provision is to give to the land- owner  or a tenant at will the same right in the land  which he  acquires  under the scheme of consolidation in  lieu  of that land which he had before the consolidation proceedings. He cannot get more (1)  [1955]1 S.C.R 70, (2) [1959] S.C.R. 878. 866 rights  than he had before nor can be get any  less  rights. It  is urged that section only preserves the rights and  has nothing  to  do with obligations to which the  land  may  be subject.   We are of opinion that this is not so.  When  the section  lays down that the land-owner or a tenant  at  will shall  have  the same right in the land allotted to  him  in pursuance  of the scheme of consolidation as he had  in  his original  holding  or  tenancy,  it  clearly  implies   that obligations would also remain the same.  If that were not so and  if his obligations were to disappear he  would  acquire more  right in the land allotted to him than he had  in  the original holding or tenancy.  For example, if the land-owner

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had  only a life interest in the original holding  he  would get  the same life interest in the land allotted to him  and could not claim to be absolute owner of the land allotted in consolidation   proceedings.   Thus  the  obligation   which attached  to his ownership of his original holding  (namely, that  it  was subject to all the disabilities of  a  limited owner)  would  also  apply to the land allotted  to  him  in consolidation  proceedings.  Therefore when S. 24 speaks  of the landowner or the tanant at will having the same right in the  land  allotted  as he had in the  original  holding  or tenancy,  it brings in all the rights and obligations  which were  attached  to  his ownership or  tenancy  of  the  land originally held. It  is  in this background that the nature of the  right  of preemption  as held in Audh Behari Singh’s case (1)  assumes importance.   In that case it was held that the law of  pre- emption   imposes  a  limitation  or  disability  upon   the ownership of a property and that the benefit as well as  the burden  of  the  right  of preemption  run  with  the  land. Therefore  if  the  original holding of  the  landowner  was subject to the disability of preemption the land allotted in lieu thereof will be equally subject to the same disability. This  will  however  always be subject to the  law  of  pre- emption  itself, and to the well-settled principle  of  pre- emption,  namely,  that the preemptor must have a  right  of preemption at the date of the sale, at the date of the  suit and  finally at the date of the decree.  Section 24 when  it says that the landowner or the tenant at will shall have the same  right  in  the land allotted to-him as  he  a  in  his original   holding   or  tenancy,  clearly   preserves   the obligation  that  may  be on the land in  the  nature  of  a disability.  The consequence therefore is that the  ordinary law of preemption under which the preemptor has the right to follow the land which is the subject-matter of the sale deed becomes expanded and the land allotted to the land-owner  or tenant  at  will  in lieu of the land which  may  have  been subject to preemption also becomes subject to preemption  in the  same  way as the original holding or  tenancy.   So  it follows  that if the land allotted in lieu of  the  original holding  or  tenancy is preemptible under the  law  of  pre- emption  and  the right of preemption still  exists  on  the three dates to which we have (1)[1955] 1 S. C.R, 70. 867 already referred, the pre-emptor would by virtue of s.24  be able to enforce his rights against land which may have  been allotted  to  the  vendee  in lieu of  the  land  which  was actually  the subject-matter of sale.  We are  therefore  of the opinion that the construction of s. 24 by the High Court is  correct and the plaintiffs-respondents have a  right  by virtue  of  s. 24 of the Act to preempt the land  which  was allotted to the appellants in lieu of the land which was the subject-matter of the sale-deed. It  is  however  urged that s. 25 of  the  Act  specifically provides  for  rights with respect to a lease,  mortgage  or other encumbrance to attach to the land allotted in place of the  original holdings, and that shows that no other  rights were  intended to survive.  We are of opinion that there  is no force in this argument.  It was necessary to enact s.  25 when  dealing  with leases, mortgages and  encumbrances  for without  such  a specific provision, a  lease,  mortgage  or encumbrance which was on one piece of land could not in  law attach  to  another  piece of land.  This  however  is  very different  from  an  incident  of  ownership  of  land  e.g. liability  to preemption which attaches to the  land  itself

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and continues to attach to the land allotted in lieu of  the original   holding  or  tenancy  by  s.  24.   The   special provisions, therefore in s. 25 do not negative the inference that  obligations which attach to the right of ownership  of the original holding or tenancy would continue to attach  to the   land  allotted  in  lieu  thereof   in   consolidation proceedings. This brings us to the subsidiary contention which was raised in  the  High Court, namely, that four of the  vendees  were allotted  land in lieu both of what they owned  from  before and what they got under the sale deed in question.  The High Court has held and we think rightly-that there should be  no difficulty  in  finding out how much of  the  land  allotted pertains  to  the land which was the subject-matter  of  the sale-deed.  Land is always valued for purposes of  allotment during consolidation proceedings and it would not  therefore be difficult to find out how much land was allotted Io these four vendees in place of the land which they got by the sale deed. Lastly it is urged that the form of the decree is incorrect. This  submission  is  made on the  basis  of  the  following sentences in the judgment of the trial court: "It does not mean that the land is not distinguishable.   It can be considered during execution at the time of delivering the possession of the land." We  have not permitted learned counsel to raise  this  point for  the first time before us, as it was not raised  in  the High Court.  We therefore reject this contention. The  appeal  fails and is hereby dismissed.   Costs  as  per order dated 8-9-65. Appeal dismissed. 868