R.S.A. No. 83 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 83 of 2010 (O&M) Date of decision: 4.1.2011 Ran Singh and others ......Appellants Versus Vijay and others .......Respondents ********* CORAM: HON'BLE MRS. JUSTICE SABINA Present : Mr. Vinod S. Bhardwaj, Advocate, for the appellants. Mr. R.A. Sheoran, Advocate, for the respondents No.1 & 2. **** SABINA, J. Plaintiffs-appellants filed a suit for separate possession by way of partition and permanent injunction, which was dismissed by the Additional Civil Judge (Senior Division), Loharu vide judgment and decree dated 9.12.2006. Appeal filed by the plaintiffs-appellants challenging the said judgment and decree was dismissed by the Additional District Judge (Fast Track Court), Bhiwani vide judgment and decree dated 29.5.2009. Hence, the present appeal. Brief facts of the case, as noticed by the learned Additional District Judge in paras No.2 and 3 of its judgment, read as under :- R.S.A. No. 83 of 2010 (O&M) 2 “2. In a nut shell, the claim of the plaintiffs, culled out from the plaint, is that they had filed a suit for possession of the suit land by way of preempting the sale deed No.56 dated 26.5.2004, interalia on the allegations, that earlier their father Bahadar son of Masana had been cultivating the suit land as gair-maurusi tenant on payment of nominal rent under the owners. After his demise, they along with the defendant No.3 have inherited the tenancy rights in equal shares and how they have been cultivating the suit land in the same capacity on payment of nominal rent. However, the owner respondent No.4 without giving any notice sold the suit land to defendants No.1 to 3, whereas the plaintiffs were having preferential right to purchase the land. The defendants No.1 and 2 purchasers are totally stranger to the suit land. However, the vendor sold the land keeping the fact concealed from them. After coming to know about the sale the plaintiffs made repeated requests to the defendants to alienate the land in their favour being pre-emptor, but the defendants kept on averting the matter on one pretext or the other and ultimately flatly refused to do so. All these facts and circumstances culminated in the institution of a civil suit. 3. On notice, the defendants No.1 and 2 appeared through their counsel and resisted the suit, on facts as well as legal grounds, having filed a joint written statement, in which they took certain preliminary objection viz. Locus standi, cause of action, R.S.A. No. 83 of 2010 (O&M) 3 maintainability, concealment of true facts, jurisdiction etc. On merits, they pleaded that Bahadar son of Mansa, Predecessor- in-interest of the plaintiffs, had already been evicted from the suit land in pursuance of order dated 26.3.1980, passed by the court of Shri Raj Kumar, Assistant Collector, First Grade, Loharu, in an eviction application No.4E, Form- K1. After passing of the said order there remained no relationship of landlord tenant in between the owner Hari Kishan and the tenant Bahadar. Since Bahdar, father of the plaintiffs, had already lost the status of tenant during his lifetime, so question of inheriting the tenancy rights by the plaintiffs does not arise. Denying other allegations, lastly, it was prayed that the suit deserves to be dismissed with costs.” On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the plaintiffs have preferential right to purchase the suit land on the grounds mentioned in the plaint? OPP. 2. Whether the plaintiffs have concealed true and material facts from the Court? OPD. 3. Whether the plaintiffs have no cause of action or locus standi to file and maintain the present suit ? OPD. 4. Whether the suit is not legally maintainable ? OPD. 5. Relief. After hearing learned counsel for the parties, I am of the R.S.A. No. 83 of 2010 (O&M) 4 opinion that the instant appeal deserves dismissal. Plaintiffs-appellants had filed a suit for possession pre-empting the sale deed No.56 dated 26.5.2004. The case of the plaintiffs was that earlier their father was cultivating the suit land as a tenant and thereafter the plaintiffs alongwith defendant No.3 had inherited the tenancy rights of their father. Section 17 of the Punjab Security of Land Tenures Act, 1953 reads as under :- 17. Right Of Certain Tenants To Pre-Empt Sale Etc. Of Land. - “Notwithstanding anything to the contrary contained in any law, usage or contract and subject to the provision of Section 18, a tenant of a landowner other than a small landowner :- (i) who has been in continuous occupation of the land comprised in his tenancy for a period exceeding four years on the date of the sale of the land or foreclosure of the right of redeem the land. (ii) Or in case of a sale of foreclosure that has taken place or shall take within a period of three years from the commencement of this Act and there is no tenant who has acquired a right under clause (i); (a) who was ejected from tenancy after the 14th day of August, 1947, and before the commencement of this Act on grounds other than those mentioned in Section 9, and was in continuous occupation of the land comprised in his R.S.A. No. 83 of 2010 (O&M) 5 tenancy for a period exceeding four years on the date of his ejectment, or (b) who has been restored to his tenancy under the provisions of this Act and those period of continuous occupation of the land comprised in his tenancy immediately before ejectment and immediately after restoration of his tenancy together exceed four years, shall, in preference to the right of other pre-emptors as provided in the Punjab, Preemption Act, 1913 (Act 1 of 1913) except the descendants of vendors grandfather, be entitled to pre-empt the sale or foreclosure of the land owner that the land comprised in the reserved area of the landowner in the manner prescribed in that Act within one year from the date of the sale of foreclosure, as the case may be : Provided that no tenant referred to in this sub-section shall be entitle to exercise any such right in respect of the land or any portion thereof, if he had sublet the land or the portion, as the case may be to any other person unless during that period the tenant was suffering from a legal disability or physically infirmity, or if a woman, was a widow or was unmarried.” Thus, as per the above provision a tenant of a land owner other than a small landowner can preempt the sale executed by the landlord if his tenancy exceeds four years on the date of sale of land. Admittedly, the landlord in the present case is a small land owner. In these circumstances, R.S.A. No. 83 of 2010 (O&M) 6 the plaintiffs-appellants had no right to preempt the sale of land by the landlord. Moreover, the father of the plaintiffs was ordered to be evicted from the suit land vide order Ex.D-1 dated 26.3.1980. The tenancy between the landlord and the father of the plaintiffs came to an end after the passing of the order Ex.D-1. The courts below had, thus, rightly dismissed the suit by the plaintiffs-appellants. No substantial question of law arises in this case which would warrant interference by this Court. Dismissed. (SABINA) JUDGE January 4, 2011 Anand