R.S.A.No. 2611 of 1996 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 2611 of 1996 (O&M) Date of decision: 16.7. 2009 Rulia and others ......Appellants Versus Bhim Singh and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. C.B.Goel, Advocate, for the appellants. Mr.Pankaj Bali, Advocate, for the respondents. **** SABINA, J. Plaintiffs Rulia and others filed a suit for possession by way of pre emption and the same was dismissed by the Sub Judge (Ist Class) Karnal, vide judgment and decree dated 20.9.1993. In appeal filed by the plaintiffs, the said judgment and decree were R.S.A.No. 2611 of 1996 (O&M) 2 upheld by the District Judge, Karnal, vide judgment and decree dated 3.6.1996. Hence, the present appeal. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- “2. The facts of the case are that Bhim Singh and others purchased piece of land measuring 12 Bighas 10 Biswas situated in khewat No.16/43-44 from defendants No.4 and 5 for Rs.25,000/- vide registered sale deed. The plaintiffs claim themselves to be tenants over the property in question and sought a decree of possession by way of pre emption on payment of Rs.4,000/-. 3. Defendants No. 1 to 3 contested the suit denying the right of the plaintiffs to pre empt the sale and alleged that they have been in possession of the property ever since they entered into agreement of sale. The other objections taken by the defendants are not relevant for adjudication of the present appeal and, therefore, not referred here.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiffs have got the right of pre empt the suit land? OPP 2. Whether the plaintiffs have got no locus standi to file and maintain the present suit? OPD R.S.A.No. 2611 of 1996 (O&M) 3 3. Whether the plaintiffs are estopped by their own act and conduct to file and maintain the present suit? OPD 4. Whether the suit is barred by limitation ? OPD 5. Whether the suit is bad for non-joinder and mis- joinder of necessary parties. 6. Whether the suit is not properly valued for the purpose of court fee and jurisdiction, if so, to what effect ? OPD. 7. Relief. ” After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. Plaintiffs in the present case have filed the suit seeking possession by way of pre emption. The case of the plaintiffs was that they were tenants over the land in dispute and hence, they were entitled to seek possession by way of pre emption. In order to prove their tenancy, plaintiffs have placed reliance on entries in the jamabandi and khasra girdawari, Ex.P-3 and P-4 respectively. In order to succeed in a suit for pre emption, the plaintiffs are required to prove that they were tenants over the land in dispute and had a right to pre-empt on the date of sale deed, on the date of filing of the suit and on the date of passing of the decree by the Court of the first instance only. The pre-emptor who claims the right to pre-empt the sale on the date of the sale must prove that such right continued to R.S.A.No. 2611 of 1996 (O&M) 4 subsist till the passing of the decree of the first court. If the claimant loses that right or a vendee improves his right equal or above the right of the claimant before the adjudication of suit, the suit for pre- emption must fail. In the present case, from the entry in the jamabandi Ex.P- 3 for the year 1987-88, it cannot be said that the plaintiffs were tenants over the land in dispute. The mere mentioning of Rulia and Mukhtiara as Gair Marusi does not lead to the inference that the plaintiffs were tenants of the vendees or the vendors. There is no entry regarding payment of rent/ lease/ share in Ex.P-3. So far as the entries in the khasra girdawari from 23.10.1988 to 24.3.1990 Ex.P-4 are concerned, the possession of the plaintiffs as tenant is not reflected therein. From the cross-examination of plaintiff Rulia (PW- 1), it is evident that he has never paid any rent to the owners. Moreover, the plaintiffs have failed to lead any evidence to the effect that they were liable to pay any rent to the owners. The sale deed Ex.P-1 was executed on 25.6.1987 by defendants No.4 and 5 in favour of defendant Nos. 1 to 3. The plaintiffs were, thus, required to establish that on the date of sale, they were tenants over the property in dispute and continued to remain so till the passing of the decree by the trial Court. However, as per the latest jamabandi placed on record by the plaintiffs, they have failed to establish their tenancy over the suit land. In these circumstances, the Courts below have rightly R.S.A.No. 2611 of 1996 (O&M) 5 held that mere entry as Gair Marusi in revenue record, Ex.P-3 would not make the plaintiffs tenants over the suit land as no documents had been proved on record which may establish that the plaintiffs were liable to pay any rent / 1/3rd Batai (as alleged by the plaintiffs) to the vendors. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE July 16, 2009 anita