R.S.A.No. 1829 of 2011(O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1829 of 2011(O&M) Date of decision: 27.4.2011 Harbans Singh ......Appellant Versus Harnam Singh .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.J.S.Chahal, Advocate, for the appellant. **** SABINA, J. The plaintiff had filed a suit for symbolic possession by way of pre-emption of the sale deed dated 28.10.2003. The case of the plaintiff, in brief, was that he was in cultivating possession of the suit land as a co-sharer and as a tenant qua the share of Inder Singh, co-sharer. Inder Singh had sold his share measuring 9 marlas out of the suit property to the defendant without any notice or intimation to him vide registered sale deed dated 28.10.2003 for a sum of ` 30,000/-. The plaintiff, being a tenant of the suit land at the spot, had the preferential right of pre- emption. During the pendency of the suit, the defendant with the R.S.A.No. 1829 of 2011(O&M) 2 help of his sons on 27.12.2003 had forcibly entered in the suit property and had constructed a wall and a khurli and had also raised a wall in the passage. The defendant and his associates had destroyed the standing wheat crop belonging to the plaintiff. The plaintiff had already deposited the pre emption money in the Court. The defendant, in his written statement, denied the contentions in the plaint. It was averred that the plaintiff was not a tenant under Inder Singh, co-sharer. The defendant had purchased the suit land from Inder Singh for consideration. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled to get symbolic possession by way of pre emption of agricultural land measuring 0 kanals 9 marla comprised in khewat No.94, Khatauni No.112, bearing khasra number 53//11/1/1/1 situated within the revenue estate of village Mandhar, H.B. No.333 Tehsil Jagadhari, District Yamuna Nagar along with all appurtenant rights thereto as per registered sale deed dated 28.10.2003 on payment of ` 30,000/- or any other amount payable to the defendant? OPP. 2. Whether the plaintiff is entitled to get actual and physical possession of land measuring 9 marla i.e. Western portion of khasra No.53//11/1/1/1 by way of demolition the construction and removing other apertures there from ? OPP R.S.A.No. 1829 of 2011(O&M) 3 3. Whether the suit of the plaintiff is not maintainable? OPD 4.Whether the plaintiff has no cause of action to file the present suit ? OPD 5. Relief.” The Civil Judge (Jr.Divn.) decreed the suit of the plaintiff vide judgment and decree dated 2.6.2010. Aggrieved by the said judgment and decree, defendant preferred an appeal and the same was dismissed vide judgment and decree dated 21.1.2011 passed by the Additional District Judge. Hence, the present appeal by the defendant. Learned counsel for the appellant has submitted that the Courts below had erred in holding that the plaintiff was a tenant under the vendor. In the absence of payment of rent, the plea of the plaintiff that he was a tenant under the vendor could not be upheld. In support of his arguments, learned counsel has placed reliance on Natha Singh and others vs. The Financial Commissioner, Taxation, Punjab and others AIR 1976 SC 1053. After hearing learned counsel for the appellant, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. In the present case, both the Courts below, after appreciating the evidence led by the parties on record, have given a finding of fact that the plaintiff was a tenant under the vendor/ co- sharer Inder Singh. Learned first Appellate Court in para 14 of the judgment has observed that as per the jamabandi for the year 1976- 77, Inder Singh was recorded as owner of the land bearing khasra R.S.A.No. 1829 of 2011(O&M) 4 No. 53//11/1/1/1 including the suit land besides the land bearing khasra No.53//9, 10/1 and 13 measuring 15 kanals 8 marlas. Buta Singh was described to be in cultivating possession of the suit land as a tenant on payment of ` 400/- as annual rent. In the later jamabandi for the year 1981-82, Harnam Singh, plaintiff was described to be in possession of the suit land as Gair Morussi Muzara under owner Inder Singh. The rate of rent was described as 1/3rd batai in the column of rent, which was liable to be paid by the plaintiff to Inder Singh. The said entry qua possession was repeated in the subsequent jamabandis. The case of the plaintiff to the effect that he was a tenant under Inder Singh was based on revenue record and order dated 13.10.1978, on the basis of which the entries in the revenue record were corrected in favour of the plaintiff qua possession as a tenant. The plaintiff had filed a suit for pre-emption with regard to the sale deed executed by Inder Singh in favour of Hem Singh by way of civil suit No.674 of 20.11.1978 and the said suit was decreed by the trial Court vide judgment and decree dated 5.5.1980. The case of the plaintiff was that he was a tenant under Inder Singh and hence had a right to pre-empt the sale deed executed by Inder Singh in favour of Hem Raj. Thereafter, the plaintiff became co-owner in possession of the suit land but he continued to be in possession of the remaining land belonging to Inder Singh as a tenant. The plaintiff was a co-sharer with respect to 4 kanals 12 of land which he had purchased from Inder Singh by pre-empting the sale deed executed by Inder Singh in favour of Hem Singh, whereas, the plaintiff was tenant qua 12 marlas of land bearing khasra No.53//1/1 under Inder Singh on payment of 1/3rd batai. R.S.A.No. 1829 of 2011(O&M) 5 Amended Section 15 of the Punjab Pre-emption Act as applicable to State of Haryana reads as under:- “ Right of pre-emption to vest in tenant- The right of pre- emption in respect of sale of agricultural land and village immovable property shall vest in tenant who holds under tenancy of the vendor or vendors of the land or property sold or a part thereof.” Thus, the plaintiff being tenant under the vendor had a right to pre-empt the sale deed executed by the vendor in favour of the defendant. Both the Courts below had, thus, rightly decreed the suit of the plaintiff. The judgment relied upon by learned counsel for the appellant fails to advance the case of the appellant as it is based on different facts. In the present case, there was enough material on record to establish that the plaintiff was a tenant under Inder Singh. Earlier suit filed by the plaintiff for pre-emption basing his claim that he was a tenant under vendor Inder Singh was decreed. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE April 27, 2011 anita