Umar Khan Vs. Nawal Singh and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/632801
SubjectProperty
CourtPunjab and Haryana High Court
Decided OnAug-24-2009
Judge Sabina, J.
Reported in(2009)156PLR338
AppellantUmar Khan
RespondentNawal Singh and ors.
Cases ReferredHola Ram v. Kewal Krishan and Ors.
Excerpt:
- sabina, j.1. plaintiffs nawal singh and others filed a suit for possession by way of pre-emption, which was decreed by the additional senior sub judge, palwal vide judgment and decree dated 22.7.1994. in appeal, the said judgment and decree were upheld by the additional district judge (vii), faridabad vide judgment and decree dated 19.9.1998. hence, the present appeal.2. brief facts of the case, as noticed by the trial court in para nos. 1 to 3 of its judgment, are as under:the plaintiffs have filed the present suit for possession by way of pre-emption of the agriculture land bearing khewat no. 704, khatoni no. 812, rectangle no. 82 killa no. 69 measuring 8 kanals, situated within the revenue estate of village gulawad, tehsil palwal, district faridabad. this land hereinafter will be called the suit land. defendant no. 2 had sold the suit land to defendant no. 1 vide registered sale deed dated 21.12.1990 for consideration of rs. 44,000/-. the plaintiffs have pleaded that the sale was made without their knowledge as no notice was served on them under section 19 of the punjab pre-emption act. the plaintiffs claimed that they have been cultivating the suit land as tenants under defendant no. 2 and as such have right of pre-emption in respect of the impugned sale. the plaintiffs had requested the defendants to admit their claim and to transfer the suit land to them on payment of sale consideration of rs. 44,000/- but the defendants had refused to do so. hence, the present suit.2. defendant no. 2 was proceeded ex parte on 17.7.1992.3. defendant no. 1 contested the suit. he filed written statement denying the plaintiff's right of preemption. he pleaded that the plaintiffs are not tenants over the suit land and claimed that plaintiffs no. 4 to 10 had surrendered and relinquished their tenancy right in his favour vide seed dated 29.6.1992 registered on 3.7.1992. it was further pleaded that the plaintiffs had notice and knowledge of the impugned sale. the defendant further claimed that he had already spent rs. 10,000/- for effective improvement in the suit land, and had ever incurred the expenses of registering the impugned deed. the defendant further pleaded that the suit is not maintainable in the present form.3. on the pleadings of the parties, following issues were framed by the trial court:1. whether the plaintiffs have got superior right of pre-emption against the defendants? opp2. whether the defendants are entitled to stamp and registration expenses? opd3. whether the suit is not maintainable? opd4. whether the defendant is entitled to improvement charges, if so to what amount? opd5. relief.4. the substantial question of law involved in this case is 'whether a tenant can claim right of pre-emption regarding the land under his tenancy or the entire land?'5. in the present case, plaintiffs nawal singh and others had filed a suit to pre-empt the sale deed dated 21.12.1990 executed by defendant no. 2 in favour of defendant no. 1 for a consideration of rs. 45,000/-. however, so far as plaintiffs no. 4 to 10 are concerned, during the pendency of this suit they relinquished their tenancy rights in favour of defendant no. 2-vendor. the suit of plaintiffs no. 1 to 3 was decreed for pre-emption qua the entire land. admittedly, plaintiffs no. 1 to 3 were tenants regarding half share in the suit property. the question that arises for consideration is as to whether plaintiffs no. 1 to 3, who are tenants with regard to half share in the suit land could pre-empt the entire land or the share qua which they were tenants over the land. the said question is no longer res integra.6. learned counsel for the appellant has placed reliance on phulla singh and anr. v. sulakhan singh (1988) 1 rev.l.r. 248 : 1988(1) r.c.r. 539, wherein it was held as under:8. the learned counsel for the appellants relied upon kartar singh and ors. v. kirpal singh (1965)67 p.l.r. short notes 123 : r.s.a. no. 252 of 1963,decided on 21.5.1964) a division bench decision of this court inter alia holding that the tenant had a right of pre-emption only with respect to the land over which he held the tenancy rights and not the entire land sold. the counsel for the appellants also relied upon sarwan singh and anr. v. tarsem lal and anr. a.i.r. 1972 punjab and haryana 315 : 1972 p.l.j. 111. the counsel for the respondent relied upon a single bench decision reported as brahm dutt v. inder singh and anr. 1977 rlr 446 : 1977 p.l.j. 257 inter alia holding that a tenant on a part of land had right to pre-empt the entire land.9. the judgment in brahm dutt's case (supra) runs counter to one in kartar singh's case (supra). i do not find any reason, nor has been pointed out, to differ with the judgment in kartar singh's case (supra).10. in view of the admitted facts i.e. the respondent being a tenant on the land measuring 39 kanals 11 marias comprised in khewat no. 107, khatauni no. 123, rectangle no. 22, killa nos. 3, 8, 21 and 23, out of the agricultural land measuring 52 kanals 5 marias, he was entitled to preempt the sale land on payment of proportionate consideration with proportionate cost for registration and stamp charges.7. learned counsel for the appellant has further placed reliance on hola ram v. kewal krishan and ors. : 1989 p.l.j. 566 : a.i.r. 1990 punj. & hary. 156, wherein it was held as under.:after hearing the learned counsel for the parties, i do not find any merit in this petition. admittedly, in the plaint originally filed the plaintiffs claimed to be the tenants on the suit land in equal shares i.e. one half each. if once the shares are determined then on the death of one tenant the other tenant would not claim to be the tenant on the whole land. as such, the judgment relied upon has no applicability to the facts and circumstances of the present case, as therein the shares of the tenants were not determined. in the circumstances, the petition fails and is dismissed with costs.8. thus the legal position is that a tenant can seek preemption only with regard to the share under his tenancy and he cannot seek pre-emption qua the entire land. the finding of both the courts below to the effect that the plaintiffs no. 1 to 3 were entitled to seek pre-emption qua the entire land is thus erroneous and against the settled legal position.9. accordingly, this appeal is partly allowed. the impugred judgment and decree of the courts below, whereby the suit of the plaintiffs no. 1 to 3 was decreed qua the entire land is modified to the extent that the suit of the plaintiffs no. 1 to 3 is decreed qua the half share in the suit property. consequently, they shall deposit the sale consideration etc. to the extent of half share in the suit property after deducting the amount already deposited by them.
Judgment:

Sabina, J.

1. Plaintiffs Nawal Singh and others filed a suit for possession by way of pre-emption, which was decreed by the Additional Senior Sub Judge, Palwal vide judgment and decree dated 22.7.1994. In appeal, the said judgment and decree were upheld by the Additional District Judge (VII), Faridabad vide judgment and decree dated 19.9.1998. Hence, the present appeal.

2. Brief facts of the case, as noticed by the trial Court in para Nos. 1 to 3 of its judgment, are as under:

The plaintiffs have filed the present suit for possession by way of pre-emption of the agriculture land bearing Khewat No. 704, Khatoni No. 812, rectangle No. 82 Killa No. 69 measuring 8 kanals, situated within the revenue estate of village Gulawad, Tehsil Palwal, District Faridabad. This land hereinafter will be called the suit land. Defendant No. 2 had sold the suit land to defendant No. 1 vide registered sale deed dated 21.12.1990 for consideration of Rs. 44,000/-. The plaintiffs have pleaded that the sale was made without their knowledge as no notice was served on them under Section 19 of the Punjab Pre-emption Act. The plaintiffs claimed that they have been cultivating the suit land as tenants under defendant No. 2 and as such have right of pre-emption in respect of the impugned sale. The plaintiffs had requested the defendants to admit their claim and to transfer the suit land to them on payment of sale consideration of Rs. 44,000/- but the defendants had refused to do so. Hence, the present suit.

2. Defendant No. 2 was proceeded ex parte on 17.7.1992.

3. Defendant No. 1 contested the suit. He filed written statement denying the plaintiff's right of preemption. He pleaded that the plaintiffs are not tenants over the suit land and claimed that plaintiffs No. 4 to 10 had surrendered and relinquished their tenancy right in his favour vide seed dated 29.6.1992 registered on 3.7.1992. It was further pleaded that the plaintiffs had notice and knowledge of the impugned sale. The defendant further claimed that he had already spent Rs. 10,000/- for effective improvement in the suit land, and had ever incurred the expenses of registering the impugned deed. The defendant further pleaded that the suit is not maintainable in the present form.

3. On the pleadings of the parties, following issues were framed by the trial Court:

1. Whether the plaintiffs have got superior right of pre-emption against the defendants? OPP

2. Whether the defendants are entitled to stamp and registration expenses? OPD

3. Whether the suit is not maintainable? OPD

4. Whether the defendant is entitled to improvement charges, if so to what amount? OPD

5. Relief.

4. The substantial question of law involved in this case is 'whether a tenant can claim right of pre-emption regarding the land under his tenancy or the entire land?'

5. In the present case, plaintiffs Nawal Singh and others had filed a suit to pre-empt the sale deed dated 21.12.1990 executed by defendant No. 2 in favour of defendant No. 1 for a consideration of Rs. 45,000/-. However, so far as plaintiffs No. 4 to 10 are concerned, during the pendency of this suit they relinquished their tenancy rights in favour of defendant No. 2-vendor. The suit of plaintiffs No. 1 to 3 was decreed for pre-emption qua the entire land. Admittedly, plaintiffs No. 1 to 3 were tenants regarding half share in the suit property. The question that arises for consideration is as to whether plaintiffs No. 1 to 3, who are tenants with regard to half share in the suit land could pre-empt the entire land or the share qua which they were tenants over the land. The said question is no longer res integra.

6. Learned Counsel for the appellant has placed reliance on Phulla Singh and Anr. v. Sulakhan Singh (1988) 1 Rev.L.R. 248 : 1988(1) R.C.R. 539, wherein it was held as under:

8. The learned Counsel for the appellants relied upon Kartar Singh and Ors. v. Kirpal Singh (1965)67 P.L.R. Short Notes 123 : R.S.A. No. 252 of 1963,decided on 21.5.1964) a Division Bench decision of this Court inter alia holding that the tenant had a right of pre-emption only with respect to the land over which he held the tenancy rights and not the entire land sold. The counsel for the appellants also relied upon Sarwan Singh and Anr. v. Tarsem Lal and Anr. A.I.R. 1972 Punjab and Haryana 315 : 1972 P.L.J. 111. The counsel for the respondent relied upon a Single Bench decision reported as Brahm Dutt v. Inder Singh and Anr. 1977 RLR 446 : 1977 P.L.J. 257 inter alia holding that a tenant on a part of land had right to pre-empt the entire land.

9. The judgment in Brahm Dutt's case (supra) runs counter to one in Kartar Singh's case (supra). I do not find any reason, nor has been pointed out, to differ with the judgment in Kartar Singh's case (supra).

10. In view of the admitted facts i.e. the respondent being a tenant on the land measuring 39 kanals 11 Marias comprised in Khewat No. 107, Khatauni No. 123, Rectangle No. 22, Killa Nos. 3, 8, 21 and 23, out of the agricultural land measuring 52 kanals 5 Marias, he was entitled to preempt the sale land on payment of proportionate consideration with proportionate cost for registration and stamp charges.

7. Learned Counsel for the appellant has further placed reliance on Hola Ram v. Kewal Krishan and Ors. : 1989 P.L.J. 566 : A.I.R. 1990 Punj. & Hary. 156, wherein it was held as under.:

After hearing the learned Counsel for the parties, I do not find any merit in this petition. Admittedly, in the plaint originally filed the plaintiffs claimed to be the tenants on the suit land in equal shares i.e. one half each. If once the shares are determined then on the death of one tenant the other tenant would not claim to be the tenant on the whole land. As such, the judgment relied upon has no applicability to the facts and circumstances of the present case, as therein the shares of the tenants were not determined. In the circumstances, the petition fails and is dismissed with costs.

8. Thus the legal position is that a tenant can seek preemption only with regard to the share under his tenancy and he cannot seek pre-emption qua the entire land. The finding of both the Courts below to the effect that the plaintiffs No. 1 to 3 were entitled to seek pre-emption qua the entire land is thus erroneous and against the settled legal position.

9. Accordingly, this appeal is partly allowed. The impugred judgment and decree of the Courts below, whereby the suit of the plaintiffs No. 1 to 3 was decreed qua the entire land is modified to the extent that the suit of the plaintiffs No. 1 to 3 is decreed qua the half share in the suit property. Consequently, they shall deposit the sale consideration etc. to the extent of half share in the suit property after deducting the amount already deposited by them.