Regular Second Appeal No.1102 of 1985. -1- In the High Court of Punjab and Haryana at Chandigarh. Regular Second Appeal No.1102 of 1985. Date of decision:9-1-2008 Vijay Singh and another. ...Appellants. Versus Surja ...Respondent. ... Coram: Hon'ble Mr. Justice K. C. Puri. ... Present: Mr. O. P. Sharma Advocate for the appellants. None for the respondent. ... K. C. Puri, J. Judgment. Surja, (respondent in this appeal), filed suit against the present appellants for possession by way of pre-emption of half share of agricultural land measuring 38 Kanals 7 Marlas being half share of 76 Kanals 14 Marlas of land situated in village Matarsham, Tehsil and District Hissar. It was pleaded that Ram Dass,Chela Thakar Dass was owner of agricultural land measuring 76 Kanals 14 Marlas and he had sold half share of the same measuring 38 Kanals 7 Marlas vide registered sale deed dated 8.5.1979 to the defendants (now appellants) in equal shares. The sale price of Rs. 29,500/- as shown in the sale-deed was fake and fictitious. In fact, Regular Second Appeal No.1102 of 1985. -2- the sale price was Rs.19,500/-. No notice was of sale was given to him. It is further pleaded by the plaintiff that he had superior right of pre-emption on the ground that he was the tenant on Batai-Tihai for the last many years on the land in question and the defendants were strangers to the land as well as to the vendor. The defendants filed written statement and contested the claim of the plaintiff. Besides raising some preliminary objections, the defendants denied that sale price of Rs.29,500/- as shown in the registered sale deed was fictitious. They asserted that the sale price was fixed in good faith and was actually paid to the vendor. The same was also market price at the time of sale. The plaintiff was not a tenant as he had been ejected vide order dated 29.9.1971. He challenged the order of ejectment upto Punjab and Haryana High Court but remained unsuccessful. The defendants prayed for the dismissal of the suit. However, they prayed that in the event of suit being decreed, they were entitled to sale price of Rs.29,500/- plus stamp and registration expenses along with costs of the suit. On the pleadings of the parties, eight issues were framed by the learned trial Court. On issue No.1, the learned trial Court held that the plaintiff was a tenant on the suit land at the time the impugned sale was effected and as such he had superior right of pre-emption. Accordingly, this issue was decided in favour of the plaintiff and against the defendants. Issue No.2 was decided in favour of the defendants and against the plaintiff and it was held that the sale price of Rs.29,500/- as shown in the registered sale deed was fixed in good faith and was actually paid to the vendor. Issue No.3 became Regular Second Appeal No.1102 of 1985. -3- redundant. On issue No.4, it was held that the defendants were entitled to stamp expenses of Rs.3,688/- and registration expenses of Rs.386.50P. Issue Nos.5,6 and 7 were decided in favour of the plaintiff and against the defendants. In view of said findings, the learned trial Court vide judgment and decree dated 17.5.1984 decreed the suit of the plaintiff for possession by way of pre-emption of half share of agricultural land detailed above. The plaintiff was also directed to deposit Rs.27,674.50P on or before 20.7.1984. Feeling aggrieved by the said judgment and decree, the defendants preferred an appeal which was dismissed by the then Additional District Judge, Hissar vide impugned judgment and decree dated 4.12.1984. Still feeling dis-satisfied with the said judgment and decree, the defendants have preferred this Regular Second Appeal in this Court. I have heard Mr. O.P.Sharma counsel for the appellants and have gone through the record of the case. None has appeared on behalf of the respondent. The following questions of law were formulated by the appellants. (i) Whether the order of ejectment passed by the Assistant Collector Ist Grade determines the relationship of tenant and landlord? (ii) Whether the order of ejectment subject to re-settlement of tenant on surplus area would terminate the relationship of tenant and landlord on passing of ejectment order? (iii) Whether the impugned order passed by the learned lower Regular Second Appeal No.1102 of 1985. -4- Appellate Court is legal and valid? The learned counsel for the appellants has submitted that it is an admitted case of the parties that ejectment order in respect of disputed property was passed against the plaintiff/respondent on 29.9.1971 and after passing of the ejectment order, the relationship of landlord and tenant comes to an end. Both the Courts below have decreed the suit of the plaintiff on the ground that the plaintiff has not been re-settled in the surplus land and relying upon the authority reported in Hira Singh and others versus Haria and others, 1973 P.L.J.760, the suit of the plaintiff for pre-emption of land by taking the plaintiff as a tenant has been decreed. The said approach of both the Courts below is erroneous and against the spirit of law. Once eviction order has been passed against the plaintiff, the relationship of tenant and landlord comes to an end between the plaintiff and the vendor of the appellants. In authority reported in Rikhi Ram and another versus Ram Kumar and others, 1975 P.l.J.331, it has been held by the Hon'ble Apex Court that even if conditional order of ejectment i.e. eviction deferred till the allotment of surplus land is ordered, the tenant does not continue to be a tenant and cannot file suit for pre-emption. The decree of pre-emption in favour of plaintiff is bad after the passing of ejectment order against him in respect of suit property. So, in these circumstances, both the Courts below have ignored the above-said fact and as such judgments of both the Courts below are liable to be set aside. I have carefully considered the submissions made by the counsel for the appellants and have gone through the record of the case. The submission made by the counsel for the appellants carries Regular Second Appeal No.1102 of 1985. -5- weight and has to be accepted in view of authority in Rikhi Ram's case (supra). Both the Courts below have returned the finding that since the plaintiff has not been re-settled, on that count even after the passing of ejectment order, the relationship of landlord and tenant existed between the plaintiff and the vendor of appellants. This finding is based upon Single Bench Judgment of Punjab and Haryana in Hira Singh and others' case (supra). The said finding does not sustain the test of legal scrutiny in view of authority in Rikhi Ram and another's case (supra). Para No.7 of the said judgment is reproduced hereunder for ready reference:- “The third point urged on behalf of the appellants is also not fit to succeed. A copy of the order of eviction passed by the Assistant Collector was incorporated in the supplementary paper book and placed before us. The order shows that eviction was allowed from the entire land. The appellants were directed to be ejected forthwith from a portion and their actual eviction from the rest of the land was deferred till the allotment of the surplus land. We are, therefore, of the view that the appellants did not continue to be tenants of any portion of the land sold to respondents 1and 2 on the date of the decree for pre-emption was passed in their favour. Hence the decree was not sustainable in respect of any portion of the land.” The Hon'ble Apex Court has given categoric finding that after the passing of the ejectment order, no relationship of landlord and tenant existed and the tenant has no right to file a suit for pre-emption even if actual eviction from the land was deferred till the allotment of surplus land. Regular Second Appeal No.1102 of 1985. -6- So, in view of the above discussion, all the three questions formulated above stand answered in favour of the appellants. It is held that no relationship of landlord and tenant existed on the date of filing the suit for pre-emption by the plaintiff/respondent on account of ejectment order dated 29.9,1971. Even the clause laid down in the said order for re- settlement of the plaintiff after allotment of surplus land does not make the plaintiff as a tenant over the suit property. Since the plaintiff was not tenant in respect of the suit property on the date of filing the suit, on account of ejectment order dated 29.9.1971, as such the plaintiff has no legal right to file the pre-emption suit. In the light of above discussion, the appeal stands accepted. The judgments of both the Courts below stand set aside and the suit of the plaintiff for pre-emption stand dismissed. However, in view of peculiar circumstances of the case, the parties are left to bear their own costs. Decree sheet be prepared. Files of the Courts below be returned after compliance. 0 January ,2008. ( K. C. Puri ) Jaggi Judge