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640 BHAGWAN DAS (DEAD) BY LRS. & ORS. v. CHETRAM October 16, 1970 [J. C. SHAH, K. S. HEGDE AND A. N. GROVER, JJ.] /'unjan Pre-emption Act (I of 1913), s. 15 (I) (a) Fourthly-Sale of . _fand--l'enantdispossessed and tenancy terminated-Suit for possession by pre-e 111 ption--M aintaina bility. A B Theappellant;purchasedcertain lands and filed a suitagainstthe C respondent, who was thetenant-at-willunder the vendor,for ejectment 'Ihc suit 'VJs decreed.The appellants entered into possess.ion and the tenancy of the respondent was determined. Thereafter, the respondent filed a suitfor possession by pre-emptionunder s. 15(1) (a) Fourthlyof the PunjabPre-emption Act, 1913 which providesthat a rightof pre emptionvests in a tenant who holdsundertenancyof thevendorthe landor property sold or a partthereof. It was contendedthat it was sufficient if the plaintiffproved that he was a tenantunder !be. vendor D on the date· of thesale. HELD: Thewell-establishedprinciple being that a pre-emptormust maintain his qualificationto pre-empt uptothe date of the de.cree for possession by pre-emption,the Legislaturecannot be attributedthe inten- tionof giving the right to a tenantwho has beendispossessedand whose ten~ncy has been determinedeither before or duringthe pendencyof his suit,claimingthe rightof pre-emption.This is particularly so as the ·statutory right of pre-emption is onewhichattachesto thelandand is E not a merepersonalright. [641 H; 642 A-B, F-G; 643 A-BJ Hans Nath v. Ragho Prasad Singh, 59 I.A. 138, 1'hakur Madho Singh v. Lt. James R.R. Skinner, I.L.R.[1942] 23 Lah. 155, Faiz Mohammad v. FajarAli Khan, I.L.R. J,1944] 25 Ladtl473 and SurjitSingh v .. Gurnam Singh, (1964) P.L.R. 1063,referredto. R fileda suitagainstChet Ram in the revenuecourt for ejectmentunder s. 14A (i) readwith s. 9 ( 1 1 of thePunjabSecurityof Land Tenures Act 1953 whichwas decreedon July31, 1967. On August31, 1968BhagwanDas and others enteredinto possessionof the afo:esaid landsafter evictingChet Ramby virtueof the decre, 0'1r evictionobtained againsthim. After his evictionChet Rao the present respondert fileda suit forpossessionof thelandswhichwere the subjectmatter of sale bypre-emptionunder s. lS(l)(a) FOURTHLY of thePunjab Pre emptionAct, 1913, (Punjab Act I of1913),hereinaftercalled the 'Act',.By th11t provisionthe rightof pre:emption has been de clared to vestin the tena!Jt whoholdsundertenancyof thevendor the la.nd orpropertysold or a pa~t thereof. It was admittedbefore thetrialcourtthat the respondentwas a tenantbeforeJuly 31, 1967and thatbeforethe institutionof thepre-emptionsuit his tenancyhad been determ,ined. Thetrialcourt dismissed the suit. On appealthe learnedAdditionalDistrict Judge, in view of certain decisionsof tbe Punjab HighCourt,allowedthe appealand de-. creed the suit.The judgmentwas upheldin secondappeal by theHighCourt. Thesolequestionfor determination is whethera personwho hasceasedto holdthe landsold as a tenantcan succeed in a suit forpossessionby pre-emptionunder s. lS(l)(a) FOURTHLY. The Punjab & HaryanaHigh Courtin KashmiriLal & Others v. C/mhar Ram ( 1) had expressedthe viewthat in a suitbased on a rightunder the aforesaidclause the plaintiffwas requiredto prove onlythat he wasa tenantunder the vendorson thedateof the saleand not at anytimethereafter as he couldnot reinaina tenant underthe vendorsafter th!IY had soldthe property. In certain otherjudgmentsdelivered by learnedsingle judgesof thePunjab HighCourtit hadbeenrecognisedthat the rulewas firmly esta blished in the lawrelatingto pre-emptionthat a pre-emptorin orderto succeedmust have a rightto pre-emptnot only at· the (I) LettersPatent AppealNo. 71of1965decided on November19. 19(9; (1970) 72 P. L. R. 325. -642 SUPREME COUllT REPORTS [ 1971 r2 S.C.R. time of salebut alsoat the institutionof thesuitandthe passing ofthedecree by thetrialcourt.In other words, thepre-emptor's rightshouldsubsistup to thedateof thepassingof thedecree andif helostthat right at anytimebeforethe decree was granted his suitmustfail. These learnedjudges of theHigh Cmlrt, how ever,consideredthat ~language of s. 15(1)(a) FOURTIILY showedthat the legislature intendedto depart from the well settl edprinciplementionedbefore and all that has to be seen is whetherthe plaintiff was a tenantof thevendoron thedateof sale(see SohanSingh v. Udho Ram & Others('). InHansNath & Others v. RaghoPrasad Singh(2) it was laid down by thePrivyCouncilthat the decisive date as regardsthe rightof a pre~mptor to pre-empt t~e sale was thedateof the decree.A fullbenchof theLahore High Courtin ThakurMadho Singh & Another v. Lt. James R. R. Skinner & Another(') while consideringthe relevantprovisions of the Actappliedthis rule to acase where avendeehad improvedhis statusduringthe pen dency of thepre-emptionsuit andheldthat a vendeecould defeat therightof a pre-emptor by improving his statusat an)" time beforethe passing of thedecree.The rightof pre-emption is a weakone and is liableto be defeated by all legitimatemeans at theinstance of a vendeeagainst whose contractan inroad is being attempted by thepre-emptor.The vendee is on thedefensiveand is entitled to arm himselfwith a shieldin orderto protecthis right.The pre-emptor is an aggressorand as he wishes to dis locate the vendeehe must show that the superiorright of pre emption which he had at thedateof the sale continuedto remain superiorat all relevant times: vide Faiz Mohammad v. Fajar Ali Khan & Anothert'-1 {Full Bench). In the latestfull bench deci sionof 11e PunjabHigh CoUrt .in Ramji Lal & Another v. The State of Punjab & Others(•) the rule that a pre-emptormust maintain his qualification to pre-emptupto the date of the decree was recognised as well settled. Inthepresence of the above principlewhich is firmly entrench ed in thelawof pre-emptionit i_s difficult to conceive that-th• legislature intended to departfrom it ins. 15(1)(a) FOURTHLY nor has any reasonbeen suggestedfor doing so. Thelanguage employed is not very happybut the clearrequirement is that the tenantmust hold the land as such. If his tenancy has cometo an end and he has been dispossessed it can never be saidthat he is holdingthe landundertenancyof any one. Thelegislature canhardlybe attributedthe intentionof giving the rightto a tenant, who hasbeendispossessedand whose tenancy has been (l) [19671 P. L. R.413. (2) 59 I.A.138. (3) I. L. R. [1942[ 23 llah.155, (4) I. LR. [1914] 25 Lah. 47). (5) (1966) 68 P. L. R.345. A B c D E F G H A 8 c D E F G H BHAGWAN DASS v. CHET RAM (Grover J.) 6•3 determined'either beforeor duringthe pendencyof thesuit, to obtaina decreefor possessionby pre-emption.This is particu larly so as the statutoryright of pre-emptionis onewhichattaches to the land and is nota merepersonalright. There could be no basis for thelegislaturegiving an indefeasibleright to a person whohappensto be in possessionof thelandsold as a tenant of the vendoc. Hisrightis neitherbetter nor worsethan any other personwho has beenconferred that right by the provisionsof s. 15 of the Act. For instance,a co-sharerhas beengivena right to pre-emptthe saleof a shareout of jointland by clause(b) FOURTHLY of s. 15(1). If a co-sharermust retainhis rightupto thedate of the decree,which he must, (See SurjitSingh v. Gurnam Singhetc. ( 1 ) thereis no intelligibleground for treatinga tenant differently. Thetenantmust showhis rightat allmaterialtimes befdre he can succeed in a suitfor pre-emption. In otherwords his tenancy must remainintact and he musthold the land in his C:apacity as a tenanttill thedate of the decree. It must be rememberedthat sale alonedoes not and cannot divestthe tenant of hisright to holdthe landof whichhe is in posse$Sionby virtue of histenancyunder the vendor.But if his tenancy is determined by a decreefor evictionhe loseshis status of a tenant. He thendoes not satisfythe firstrequirementof s. 15(1) FOlJRTHLY that he is a tenantwho holdsthe land. In thatsituation he cannotsucceedin a pre-emptionsuit if the de cree. foreviction has beenpassedafter the salebut beforethe institution of the suit or duringits pendencyand before the date of the decree. Thiswouldbe so by applyingthe wellestablished role which,as statedearlier,has becomea partof thelawrelating to pre-emption. In the presentcase not onlya decreefor evictionwas passed against the respondent but he wasalsoactuallydispossessedfrom die land in his tenancy pursuant to the decreebefore he filedthe pre-emptionsuit. We Rre altogetherunable to seehowhe could begranteda decreein sucha suit. An attemptwas madeby meansof C.M.P. No. 4634of 1970 on behalfof therespondentsto reopenthe questionof theareain respect of whichthe decreefor evictionhad beenpassed on July 31,1967. It wasmaintainedthat it relatedonly to certain KhasraNumberswhich were coveredby thefirstsale shown as clause (a) in theheadingof theplaintand thatthere was no order relatingto evictionfrom the landcovered by the secondsale men tioned in clause (b) therein.This questionwas neverraisedin the courtsbelow and as it involvesan investigationinto mattersof (I) (1964) P. L. R. 10623. 644 SUPREME COURT REPORTS [197112 S.C.R. fact it was not possibleto allowthe same to be reopenedat this stage. Theappeal is allowedand the suit of therespondent is dis· missed. In view of the natureof thepointsinvolvedthe parties areleftto beartheir own costs in this Court. V.P.S. Appeal allowed , A B |
