l Appeal No 205469
Appeal by Special Leave from the Judgment and Order dated the 5 8 1969 of the Punjab and Haryana High Court in Regular Second Appeal No 983 of 1969
VC Mahajan Mrs Urmila Kapoor and Miss Kamlesh Bansal for the appellants
Ram Sarup and R A Gupta for respondent No 1
The Judg ment of the Court was delivered by JASWANT SINGH J
This appeal by special leave which is directed against the judgment and order dated September 24 1969 of the High Court of Punjab and Haryana at Chandigarh passed in RSA No 983 of 1969 arises in the following circumstances  Bhawani Dass respondent No 2 herein who owned agri cultural land measuring 50 kanals and 6 mafias comprised in Khewat No 223 Khatauni No 467 468 situate in village Kohlawas Tehsil Dadri District Mohindergarh sold the same to Munshi Dina and Rani Dutt appellants before us in lieu of Rs10000 by means of registered sale deed Ext
D 1 dated October 17 1966
Alleging that he held as a non occupancy tenant under Bhawani Dass the aforementioned land on the date of its sale to the appellants and had continued to do so and as such had a preferential right of its purchase under clause Fourthly of section 151a of the Punjab Pre emption Act 1913 Punjab Act 1 of 1913 which still applies to the State of Haryana Richpal re spondent No 1 herein brought a suit on October 17 1967 for possession of the said  land by pre emption in the Court of the Sub Judge Charkhi Dadri
The suit was resist ed by the appellants contending inter alia that the plain tiff respondent was neither a nonoccupancy tenant of the land in question under Bhawani Dass vendor nor was he in possession of the land either on the day of the aforesaid sale or on the day of the institution off the suit
After settling the necessary issues and recording the evidence adduced by the parties the trial court by its judgment dated February 1 1969 decreed the suit in favour of the plaintiff pre emptor on payment of Rs 10000 the consid eration of the aforesaid sale plus Rs 727 the costs incurred by the vendees appellants on the stamps registra tion fee etc holding that he had been a tenant at will under the vendor from Kharif 1957 to Rabi 1968 that he was forcibly dispossessed after the sale that wrongful eviction of a tenant could be of no consequence in the eye of law that the plaintiff pre emptor continued to hold his rights as a tenant including the right to immediate posses sion and cultivation of the land notwithstanding his wrong ful ouster therefrom by the vendees who could not be allowed to take advantage of their own wrongs and the former must be deemed to continue in legal possession of the land which was comprised in his tenancy under the vendor on the date of the sale right upto the date of the suit and the date of the decree of the trial court in his favour
The trial court further held that a tenant s eviction can only be had under sections 7 and 7A of the Pepsu Tenancy and Agricul tural Lands Act 1955 and there is nothing on the record of the case to even insinuate that the plaintiff s tenancy 3 which subsisted at the time of the impugned sale was ever determined or terminated under section 7 or 7A of the Act and the plaintiff who was in physical possession of the land in suit as a tenant at the time of the sale has to be taken to be in legal possession up till the present moment 
In conclusion the trial could held that the mere act of forcible dispossession of the plaintiff pre emptor at the hands of the vendees after the sale could not have the effect of divesting him of his right to hold the land which he had acquired as a tenant of the vendor and in the eye of law he must be presumed to have continued to be a tenant all along and as such had a preferential right of pre emption
The judgment and decree passed by the trial court was affirmed in appeal not only by the Additional District Judge Gurgaon but also by a learned Single Judge and Letters Patent Bench of the High Court
Aggrieved by these decisions the vendees appellants have as already stated come up in further appeal to this Court
The sole point that has been urged before us on behalf of the appellants is that as according to the decision of this Court in Bhagwan Das vs Chet Ram1 the plaintiff pre emptor has to prove his subsisting right of pre emption on all the three material dates viz1 the date of sale 2 the date of institution of the suit and 3 the date of passing of the decree and in the instant case he failed to file a suit in the revenue court for recovery of possession of the suit land within one year of the date of his dispos session as contemplated by section 50 of the Punjab Tenancy Act 1887 not only his remedy was destroyed but his right and title was also extinguished at the expiry of that period on the general principles underlying section 27 of the  which may not in terms be applica ble to the present case
Though the learned counsel for the appellants cited a few cases in support of his contention but did not unfortunately bring to our notice the decision of this Court in Dindyal  Anr
vs Raja Ram 2 which may in an appropriate case require reconsideration by a larger bench of this Court we think he cannot be allowed canvass the aforesaid point
A reference to the record of the case shows that the point now sought to be agitated before us was not raised by the appellants either in their written state ment or in the grounds of the three appeals preferred by them before the courts below
All that appeals from the record to have
been urged by them in the grounds of the aforesaid appeals was that the evidence had not been proper ly appraised and that in the absence of any lease deed in his favour or any receipt evidencing payment of rent by him to the vendor mere entries in the khasra girdawaries were not enough to establish that the plaintiff pre emptor was a tenant of the suit land under the vendor at the time of the sale
The suit land being situate in the district of Mohindergarh which formed part of the territories of the erstwhile of Pepsu the case as rightly observed by the court of first instance was governed by sections 7 and 7A of the Pepsu Tenancy and Agricultural Lands Act 1955 which in view of section 4 of that Act have an overriding effect and provide as under  4
Act to over ride other laws Save as otherwise expressly provided in this Act the provisions of this Act 1  2 4 shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instru ment having effect by virtue of any such law or any usage agreement settlement grant sanad or any decree or order of any court or other authority
Termination of tenancy 1 No tenancy shall be terminated except in accord ance with the provisions of this Act or except of any of the following grounds namely  b that the tenant has failed to pay rent within a period of six months after it falls due Provided that no tenant shall be ejected under this clause unless he has been afforded an opportunity to pay the arrears of rent within a further period of six months from the date of the decree or order directing his ejectment and he had failed to pay such ar rears during that period c that the tenant not being a widow a minor an unmarried woman a member of the Armed Forces of the Union or a person incapa ble of cultivating land by reason of physical or mental infirmity has after commencement of the President s Act sublet without the consent in writing of the landowner the land comprising his tenancy or any part thereof d that the tenant has without sufficient cause failed to cultivate personally such land in the manner and to the extent customary in the locality in Which such land is situat ed e that the tenant has used such land or any part thereof in a manner which is likely to render the land unfit for the purpose for which it was leased to him f that the tenant on demand in writing by the landowner has refused to execute a kabuliyat agreeing to pay rent in respect of his tenancy in accordance with the provisions of sections 9 and 10
2     7A Additional grounds for termination of tenancy in certain cases 1 Subject to the provisions of sub sections 2 and 3 a tenancy subsisting at the commencement of the Pepsu Tenancy and Agricultural Lands Second Amendment Act 1956 may be terminated on the following grounds in addition to the grounds specified in section 7 namely  a that the land comprising the tenancy has been reserved by the land owner for his personal cultivation in accordance with the provisions of Chapter II b that the landowner owns thirty standard acres or less of land and the land falls within the permissible limit 5 Provided that no tenant shall be ejected under this subsection i from any area of land if the area under the personal cultivation of the tenant does not exceed five standard acres ii from an area of five standard acres if the area under the personal cultivation of the tenant exceeds five standards acres
until he is allowed by the State Government alternative land of equivalent value in stand ard acres
2 No tenant who immediately preceding the commencement of the President s Act has held any land continuously for a period of twelve years or more under the same land owner or his predecessor in title shah be ejected on the grounds specified in sub section 1 a from any area of land if the area under the personal cultivation of the tenant does not exceed fifteen standards acres or b from an area of fifteen standards acres if the area under the personal cultiva tion of the tenant exceeds fifteen standard acres provided that nothing in this sub section shall apply to the tenant of a landowner who both at the commencement of the tenacy and the commencement of the President s Act was a widow a minor an unmarried woman a member of the Armed Forces of the Union or a person incapable of cultivating land by reason of physical or mental infirmity
Explanation
In computing the period of twelve years the period during which any land has been held under the same land owner or his predecessor in title by the father brother or son of the tenant shall be included
3 For the purpose of computing under sub sections 1 and 2 the area of land under the personal cultivation of a tenant any area of land owned by the tenant and under his personal cultivation shall be included
 It cannot in view of the above noted provisions of law and the decision of this Court in Rikh Ram  Anr
vs Ram Kumar  Ors1 be disputed that an order or decree direct ing eviction of a tenant is necessary to be obtained to bring about a determination of the tenancy
A fortiori a person who has been in possession of land with the right to possess it continues to hold the land and to be a tenant in spite of having been wrongfully put out of possession espe cially if he has initiated proceedings for recovery of possession
As in the instant case it has been concur rently found by all the courts below that the plaintiff pre emptor was a tenant of the suit land on the date of sale 1 6 and it has not been alleged much less proved that his tenancy was thereafter determined or terminated on any of the grounds set out in sections 7 and 7A of the Pepsu Tenan cy and Agricultural Lands Act 1955 and he had admittedly applied to the Tehsildar for restoration of his posses sion he cannot but be deemed to be a tenant of the suit land on the date of the sale as well as on all other materi al dates and thus fully qualified and entitled to pre empt the land
We must fairly state that our judgment is based on the provisions of law brought to our notice by counsel and our conclusion is confined to the interpretation of the Acts referred to above
For the foregoing reasons we do not find any merit in this appeal which is dismissed
In the circumstances of the case we leave the parties to bear their own costs of this appeal
PBR Appeal dismissed


Summary:
Section 7 of the Pepsu Tenancy and Agricultural Lands Act 1955 which deals with termination of tenancy provides that no tenancy shall be terminated except on any of the grounds mentioned in the section
Section 7 gives additional grounds for termination of tenancy in certain cases
Respondent No 2 sold his land to the appellants
Claiming that he was a non occupancy tenant under respondent No 2 respondent No 1 filed a suit for possession of the land by pre emption
The trial Court decreed the suit in favour of the plaintiff pre emptor holding that he had been a tenant at will on the date of the sale and that he was forcibly dispossessed after the sale
The District Judge as well as the High Court upheld the trial Court s decision
It was contended on behalf of the appellants that the pre emptor had to prove his subsisting right of pre emption on the date of sale date of institution Of the suit and date of passing of the decree and since the plaintiff had failed to file a suit for recovery of possession under section 50 of the Punjab Tenancy Act 1887 his right and title had been extinguished
Dismissing the appeal HELD The plaintiff cannot but be deemed to be the tenant of the suit land on the date of sale as well as on all other material dates and is thus fully qualified and entitled to pre empt the land
5H The point now sought to be raised was not raised by the appellant in the Courts below
In view of the provisions of sections 7 and 7A of the Pepsu Tenancy and Agricultural Lands Act 1955 which have an over riding effect and the decision of this Court in Rikki Ram  Anr vs Ram Kumar  Ors it cannot be disputed that an order or decree di recting eviction of a tenant is necessary to be obtained to bring about a determination of the tenancy
A fortiori the person who has been in possession of the land with the right to possess it continues to hold the land and be a tenant in spite of having been wrongfully put out of posses sion specially if he has initiated proceedings for recovery of possession
3E  5F Since in the instant case it has been concurrently found by the Courts below that the plaintiff pre emptor was a tenant of the suit land on the date of sale and it has not been alleged that his tenancy was thereafter determined or terminated on any of the grounds set out in sections 7 and 7A of the Act and the plaintiff had applied to the Tehsildar for restoration of possession he could not but be deemed to be a tenant of the suit land on the date of the sale as well as on all other material dates and thus fully qualified and entitled to pre empt the land
5G Rikki Ram  Anr
vs Ram Kumar  Ors followed
Bhagwan Das vs Chet Ram  and Dindyal  Anr
vs Rajaram referred to 2