Regular Second Appeal No.1568 of 2006 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 1568 of 2006 Date of Decision: July 03, 2009 Dalbir Singh ...........Appellant Versus Gurbachan Singh and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Amit Jain, Advocate for the Appellant. Mr.B.R.Gupta, Advocate for the respondents ** Sabina, J. Plaintiffs filed this suit seeking a decree for possession of the suit by way of pre-emption of sale deed dated 8.8.2000. Vide judgment and decree dated 25.10.2005, the Civil Judge (Senior Division) Fatehabad decreed the suit of the plaintiffs. Appeal filed by the defendant-Dalbir Singh against the said judgment and decree was dismissed by the Additional District Judge, Fatehabad vide judgment and decree dated 21.2.2006. Hence, the present appeal. The case of the parties, as noticed by the learned Additional District Judge, Fatehabad in paras 2 and 3 of its judgment, reads as under:- “2. The facts, in brief, leading to this appeal are that the respondents-plaintiffs have filed a suit for possession of the suit land measuring 8 kanals 0 marla comprised in khasra No.124//9 (8-0) by way of pre-emption of sale deed No.1683 dated 8.8.2000, Regular Second Appeal No.1568 of 2006 2 inter-alia, alleging that they are in clutivating possession of the suit land as tenant under original owner Diwan Chand and Harbans Lal. To substantiate their case, they alleged that previously Munsha Ram and Hakam Singh sons of Hira Singh were cultivating the suit land on 1/3rd batai under the original owners and after the death of above persons they being the legal heirs of those persons came in cultivating possession of the suit land as tenants, as such, they have superior right to pre- empt the sale in question which is without notice to them. Hence, the suit. 3. On notice, the suit was contested by the appellant-defendant, inter-alia, alleging that the suit is not maintainable as the respondents-plaintiffs are not tenant in possession of the suit land because Munsha Ram and Hakam Singh, the alleged predecessor- in-interest of the respondents-plaintiffs have already ceased to be tenants of the suit land. On the contrary, the original owner was in possession of the suit land and they are lawful purchaser of the same,hence, they prayed that the suit be dismissed.” On the pleadings of the parties, the following issues were framed:- “1. Whether the plaintiffs have superior right of pre-emption on the grounds as mentioned in the plaint?OPP. 2. Whether the plaintiffs have no locus standi to file the present suit?OPD 3. Whether the plaintiffs have no cause of action to file the present suit?OPD. Regular Second Appeal No.1568 of 2006 3 4. Whether the suit of the plaintiff is not maintainable in the present form?OPD 5. Whether the present suit has been got instituted in collusion with previous land owners, if so, to what effect?OPD. 6. Whether the defendant is entitled to stamp and registration charges, in case the suit of plaintiff is decreed?OPD 7. Whether the suit is bad on the principle of partial pre- emption?OPD 8. Whether the pre-emption law is not applicable on the Rai Sikh Caste?OPD 9. Whether the 1/5th pre-emption money has not been deposited, if so, to what effect?OPD 10. Relief” After hearing the learned counsel for the parties, I am of the opinion that this appeal deserves to be dismissed. The case of the appellant is that the tenancy rights of the deceased Munsha Ram and Hakam Singh had extinguished long back and the plaintiffs had never remained in possession of the suit land as tenants. The case of the plaintiffs-respondents, on the other hand, is that they were tenants over the land-in-dispute and hence, had a right to pre- empt the sale deed. In order to prove their case, plaintiff No.1 appeared in the witness box as PW1 reiterating his case as stated in the plaint. He stated that he was in cultivating possession of the suit land as tenant after the death of Munsha Ram, his father and uncle Hakam Singh. His father and uncle were tenants under the previous owners, namely, Diwan Chand and Harabans on 1/3rd batai. PW2 Makhan Singh corroborated the Regular Second Appeal No.1568 of 2006 4 statement of PW1. Defendant,on the other hand, appeared in the witness box as DW2 and deposed that the entries in the revenue record in the name of Munsha Ram and Hakam Singh were wrong as they had died long back and now he was in cultivating possession of the suit land. The first and foremost question that requires consideration is as to whether the plaintiffs were tenants in possession over the suit land. It was averred by the defendant that the original tenants Munsha Ram and Hakam Singh predecessor-in-interest of the plaintiffs have themselves admitted that they were not in possession of the entire land but they were only in possession of half share out of the total land as tenants. In the year 1980, during the life time of Munsha Ram and Hakam Singh, Sardara Singh father of the appellant had moved an application for correction of entries in the Khasra girdwaries. Munsha Ram and Hakam Sngh, while appearing in the witness box, stated in their statements ( Exhibits D1 and D2) that they were in possession of only half share of the suit land and the remaining half share was in possession of Sardara Singh. Collector, while deciding the application, however, did not rely upon the statements of Munsha Ram and Hakam Singh and dismissed the application for correction of entries in khasra girdwaries. The said order has become final since it was not challenged further in appeal or revision. As per the statement of Diwan Chand (Exhibit P7), the owner of the land from whom the appellant -defendant had purchased the same, Munsha Ram and Hakam Singh were in possession of the suit land in the year 1980. Thus, it is evident that Munsha Ram and Hakam Singh were in possession of the suit land as tenants. Since the Collector had not relied upon the statements of Munsha Ram and Hakam Singh to the effect that they were in possession of half of the suit land, no Regular Second Appeal No.1568 of 2006 5 reliance can be placed on the said statements by treating them as admission. As per Section 8 of the Punjab Security of land Tenure Act,1953 after the death of original land lord, the male lineal descendent or mother or widow of the original tenant continue with the tenancy. As per the original revenue record Munsha Ram and Hakam Singh predecessor -in-interest, of the plaintiffs are recorded in cultivating possession of the suit land. There was no evidence to the effect that they had been ever evicted from the suit land and after their death, plaintiffs were in possession of the suit land as tenants. Application made by Sardara Singh seeking correction of entries in the khasra girdawari was dismissed by the Assistant Collector II Grade. It has been held by the Hon'ble Supreme Court in Mansu vs. Shadi Ram 1996 Punjab Law Journal 215 which reads as under:- "Once it was conceded that the appelant was the tenant over the land in dispute, he shall be presumed to have continued thereafter unless by some cogent evidence or overt act it could be proved that he abandoned the tenancy or was otherwise evicted in accordance with law. The oral evidence goes to support the appellant that he continued to be in possession till date. He,thus, has a right to maintain his possession under the existing state of law in exercise of his right of pre-emption as a tenant." In Atam Parkash vs. State of Haryana and others 1986 Punjab Lal Reporter 329, it has been held by Hon'ble the Supreme Court as under:- "The right of pre-emption vested in a tenant can also be easily sustained. There can be no denying that the movement of all land reform legislations has been towards enabling the tiller of the soil Regular Second Appeal No.1568 of 2006 6 to obtain proprietary right in the soil so that he may not be disturbed from possession of the land and deprived of his livelihood by a superior proprietor. The right of pre-emption in favour of a tenant granted by the Act is only another instance of a legislation aimed at protecting the tenant. There can be no doubt that tenants form a distinct class by themselves and the right of pre-emption granted in their favour is reasonable and in the public interest. We are, therefore, of the view that clause fourthly of S.15(1)(a), clauses `fourthly and fifthly' of S. 15(1)(b) and clause `fourthly' S 15(1)(c) are valid and do not infringe either Art. 14 or 15 of the Constitution". Learned counsel has failed to point out that the predecessor -in-interest of the plaintiffs or plaintiffs had ever abandoned the tenancy or had otherwise been evicted from the suit land in accordance with law. Hence, the Courts below have rightly held that the plaintiffs were in possession of the suit land as tenants and the suit of the plaintiffs was rightly decreed. No substantial question of law arises in this regular second appeal which would warrant interference by this Court Accordingly, this appeal is dismissed. ( Sabina ) Judge July 03, 2009 arya