R.S.A. No. 32 of 1991 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 32 of 1991 (O&M) Date of decision: 23.02.2010 Smt. Maya Devi and others ...Appellants Versus Rattan Singh and another ...Respondents Coram: Hon'ble Mr. Justice Vinod K. Sharma Present: -Mr. Saurabh Bajaj, Advocate, for the appellants. Mr. Ram Chander, Advocate, for respondent No.1. Vinod K. Sharma, J.(Oral) CM No. 2347-C of 2010 CM allowed, substantial questions of law are taken on record. RSA No. 32 of 1991 This regular second appeal, by plaintiff/appellants, is directed against the judgment and decree dated 23.7.1990, vide which the suit filed by the plaintiffs to pre-empt the sale made by Prem Inder Singh and Naresh Inder Singh, sons of Ajinder Singh, was partly allowed. The suit of the appellants, was decreed for possession of half share of the property sold by way of pre-emption being the tenants. The facts in brief read as under: - Manjit Singh Buttalla filed a suit for pre-emption, to pre-empt the sale as a relation of the vendors, whereas appellants filed a suit as rival pre-emptors. Both the suits were taken and disposed of together. While the suit filed by Manjit Singh Buttalla was dismissed, the suit filed by the plaintiff/appellants was partly allowed. The case set up by the plaintiff/appellants was, that the property sold by the defendants was under the tenancy of one Telu, which was inherited by his two sons R.S.A. No. 32 of 1991 (O&M) -2- Phula and Harphul. It was the case of the plaintiffs that Phula was cultivating the land as Harphul was working in the defence forces. The plaintiff/appellants asserted their right of pre-emption being the legal heirs of Phula i.e. widow and sons. Vendors had sold 38 kanals 5 marlas of land for total sale consideration of Rs.48,000/- (Rupees forty eight thousand only) on 22.8.1978. It was pleaded by the plaintiff/appellants that, in fact, property was sold only for Rs.30,000/- (Rupees thirty thousand only), and sale consideration of Rs.48,000/- (Rupees forty eight thousand only) was fictitious, to defeat the rights of the prospective pre-emptors. The suit was contested by defendant/respondent on various grounds. However, the factum of sale for total consideration of Rs.48,000/- (Rupees forty eight thousand only) was admitted by plaintiff/appellants, and was also said to be in good faith. It was also pleaded, that the plaintiff/appellants had not deposited 1/5th of the sale consideration as directed by the Court. That the suit was bad for partial pre-emption. The defendant/respondent also claimed stamp and registration charges besides improvement charges. On the pleadings of the parties, the learned trial Court framed the following issues: - “1. Whether the plaintiff has got a superior right of pre-emption? OPP 2. Whether the rival pre-emptors have got a superior right of pre-emption? OPD (defdt. 4 to 7) 3. Whether the plaint and power of attorney of suit filed by Manjit Singh, plaintiff does not bear his signatures, if so, its effect? OPD (4 to 7) 4. Whether Manjit Singh, plaintiff is only a figure head and the suit has been got filed by the vendee-defendant Rattan Singh through his counsel Shri Sat Pal Chopra Advocate? OPD (4 R.S.A. No. 32 of 1991 (O&M) -3- to 7) 5. Whether the suit of the plaintiff Manjit Singh and rival pre-emptors are within limitation? OPP 6. Whether the sale price was fixed in good faith or actually paid? OPD (3) 7. If issue No.6 is not proved, what was the market value of the suit land in dispute at the time of sale? OPP Parties. 8. Whether the court fee has been correctly affixed? OPD (4 to 7) 9. Whether the amount of 1/5th pre-emption money has not been deposited in time? OPD (i) 10. Whether the suit of the rival pre-emptors is for partial pre-emption? OPD (i) 11. Relief.” We are not concerned with issues No.1, 3, 4 and 5, as they relate to the suit filed by Manjit Singh, which has attained finality. Learned trial Court on issue No.2, on appreciation of evidence, held, that the plaintiff/appellants had a superior right of pre- emption. On issue No.6, it was held that sale price was fixed in good faith and actually paid. Issue No.7, therefore, was decided against the defendants in view of the findings on issue No.6. On issue No.8, it was held that the court fee was correctly paid. The learned trial Court also held, that 1/5th pre-emption money stood deposited and the suit, was not held to be bad for partial pre- emption. The learned trial Court held that the suit was to be decreed for the tenancy held by the plaintiff/appellants. Consequently, as observed above, the suit was decreed for possession of half of the property sold, being under the tenancy of the appellants. R.S.A. No. 32 of 1991 (O&M) -4- In appeal, the findings of the learned trial Court were affirmed, and the appeal filed by the appellants was ordered to be dismissed. Learned counsel for the appellants contends, that this appeal raises the following substantial questions of law: - “1. Whether a person, who is proved to be tenant on the part of the land sold, is entitled to pre-empt whole of the land? 2. Whether the judgment and decree passed by the learned Courts below is perverse and outcome of mis-reading of evidence in coming to the conclusion that the plaintiff/appellants were only tenants over part of the land?” In support of the substantial questions of law, referred to above, the learned counsel for the appellants vehemently contended, that the finding recorded by the learned Courts below, that the plaintiff/appellants were tenants only over half of the land as other half was surrendered by Harphul, was based on no evidence whatsoever, and was further beyond the pleadings. It was not disputed in the pleadings that the property was in possession of the appellants, as tenants after the death of Phula. It is also the contention of the learned counsel for the appellants, that in any case, the plaintiff/appellants could not be said to be tenants over the part of the land, as the tenancy was joint by way of inheritance as there was no partition between Phula and Harphul, so as to say that plaintiff/appellants were tenants only over half of the portion. The plaintiff/appellants continued to be joint tenants, on whole of the joint property, and their dispossession was illegal. The plaintiff/appellants had already moved the Court, under Section 50 of the Punjab Tenancy Act, for restoration of their possession. It was the contention of the learned counsel for the appellants, R.S.A. No. 32 of 1991 (O&M) -5- that the learned Courts below wrongly granted decree for half of the sold land only, by treating the appellants to be tenants over the half portion. The contention of the learned counsel for the appellants was, that even if for the sake of arguments it is held, that the plaintiff/appellants were tenants over half of the portion only, still they were entitled to pre-empt whole of the land and not only the half. The appeal is opposed by Mr. Ram Chander, learned counsel, appearing on behalf of respondent No.1, on the ground, that in order to succeed in a suit for pre-emption, the tenant was not only to prove his tenancy, but also to prove his possession on the date of filing of the suit as well as on the date of decree. The contention of the learned counsel for respondent No.1, therefore, was that once it was proved that the appellants were not in possession of half of the portion, which was admittedly in possession of the defendant/respondent, the decree passed by the learned Courts below cannot be challenged on the contentions raised by the learned counsel for the appellants. The learned counsel for respondent No.1 also contended that the tenancy was not joint, as after the death of Telu, parties were recorded in separate possession. Shri Phula was tenant over only half of the portion, whereas other half portion, which was under the tenancy of Harphul, was surrendered to the defendant/respondent, prior to the date of sale. On consideration, I find force in the contentions raised by the learned counsel for the appellants. It is now well settled law, that the tenant is entitled to pre-empt whole of the sale in case he is proved to be tenant even over the part of the property sold. This fact is not in dispute that the plaintiff/appellants were in possession of half of the sold R.S.A. No. 32 of 1991 (O&M) -6- land, as tenants, therefore, the suit for pre-emption was liable to be decreed in totality and not half portion by treating them to be in possession as tenants of half portion only. This view finds support from the judgment of the Hon'ble Supreme Court in Ram Chand Vs. Randhir Singh and others, (1994- 3) PLR 605, wherein the Hon'ble Supreme Court was pleased to lay down as under: - “11. A learned single Judge of the Punjab and Haryana High Court in Balwinder Singh & Ors. v. Mehar Singh & Ors, [1966-68 (Supp) PLR 484], interpreting the provision has viewed that the word “holds” in the provision is not to be construed in isolation but is to be read with its succeeding words “under tenancy”. This ratio of the High Court had apparently risen where the tenant claiming pre-emption of the suit land had, after the sale, been ousted from physical possession and his claim for pre-emption was being protected by the Court. It is in that context that the High Court ruled that the word “holds” must be read alongwith the words “under tenancy” and that the right of tenancy did not merely mean the act of physical possession but also included a bunch of incorporeal rights which are not capable of physical possession. Qualificatory rights in that regard were thus settled by precedent that the pre-empting tenant should merely have held the land on the date of sale and not necessarily at any time thereafter to satisfy the rule of maintaining the status on three occasions i.e. on the date of sale, on the date of suit and on the date of the decree of the first court. However, it has always remained unquestioned that the tenant can pre-empt the sale with regard to the portion of the land actually in his tenancy. To the un-tenanted portion which was part of the sale, a bar has always been read. All the same, it would have to be gathered from the provision whether such right of pre-emption, in respect of agricultural land, R.S.A. No. 32 of 1991 (O&M) -7- has been made to vest in the tenant? It is apparent that the tenant, in priority has the last right for pre-emption in section 15(1) of the Act. The language conferring such right, as is evident, is not punctuated. All the words have been put together. Its language thus is capable of more than one meaning. Therefore, whatever goes to further the intendment of the measure should be the basis of interpretation. It is well to remember that this right to the tenant was conferred by amendment in the Act in the year 1960 in the post constitutional era as part of agrarian reform. Atam Parkash's case is a clear pointer. Unlike its other provisions, save in the case of a cosharer, which have been struck down as archaic and unconstitutional in Atam Parkash's case, this part has been kept alive, attuned as it is with modern thinking. Thus the provision would need a purposive interpretation furthering, if not expanding, the right rather than curtailing it. If the words “holds under tenancy” be not disjuncted as per dictum of Balwant Singh's case (supra), they have then as a sequator to be conjuncted with the words “of the vendor”. If so the right thus is vested in the tenant who holds under tenancy f the vendor not only the land sold but even a part thereof, i.e. of the land sold. Thus on interpretation, this view can be taken that when a tenanted part of land is involved in the sale, the tenant thereof has a right of pre-emption qua the entire sold land and the vendees cannot resist the same.” The first substantial question of law, therefore, is answered in favour of the appellants, and the plaintiff/appellants are held entitled to pre-empt whole of the land. In view of the finding on first substantial question of law, there is no necessity to answer the second substantial question of law, as the suit of plaintiff/appellants deserve to succeed, on the first question of law, in view of the admitted position that plaintiff/appellants were R.S.A. No. 32 of 1991 (O&M) -8- tenants over half of the suit land. The plaintiff/appellants were entitled to pre-empt the whole of the sold land. Consequently, this appeal is allowed, the judgment and decree passed by the learned Courts below is modified, and the suit filed by the plaintiff/appellants is decreed in totality. The plaintiff/appellants shall pay the sale consideration less 1/5th already paid, within one month of the date of receipt of certified copy of this judgment. No costs. (Vinod K. Sharma) February 23, 2010 Judge R.S.