PUNJAB AND HARYANA HIGH COURT

                                                   Sohan Singh

                                                         Vs

                                                    Udho Ram

                                  Regular Second Appeal No. 851 of 1962

                                            (Prem Chand Pandit, J.)

                                                   23.01.1967

                                                     ORDER

Pandit, J.

1. On 21st of April, 1960, by a registered deed, Ujagar Singh sold the land in suit to Udho Ram
and Rattan Chand for Rs. 4,880. This sale led to a suit by Sohan Singh for possession of the land
by pre-emption alleging that he, being the tenant of the vendor at the time of sale, had a
preferential right to purchase this property as against the vendees. He also alleged that in fact the
sale had been effected for Rs. 3,880 and not Rs. 4,880 as mentioned in the sale deed.

2. The suit was resisted by the vendees who denied the allegations made by the plaintiff and
pleaded that he had no right of pre-emption.

3. Before the framing of the issues the statements of the parties were recorded. The plaintiff
stated that he was in possession of the land in suit as a tenant of the vendor at the time of sale, but
on the date of the institution of the suit he had ceased to be in possession of the land. The
vendees said that the plaintiff was not a tenant at will of the land in dispute either at the time of
the filing of the suit or on the date when the statements were recorded. The trial judge was of the
view that since the plaintiff, on his own admission, was not the tenant of the land in dispute on
the date of the institution of the suit, he had lost his qualification to., pre-empt the land. It was,
according to the trial court, well established that the plaintiff's preferential right must not only
exist at the time of sale, but it should also be in existence at the time of the suit as well as at the
date of the decree. As a result he came to the conclusion that the plaintiff had no cause of action
and he rejected the plaint under the provisions of Order 7, rule 11, Civil Procedure Code.

4. Against this decision, the plaintiff went in appeal before the learned Additional District Judge.
Hoshiarpur. The argument raised by his counsel before the learned Judge was that the wording of
the amended section 15(1) (a) showed that it was not possible for the tenant to continue holding
the land sold under the tenancy of the vendor after the date of sale. This contention was repelled
by the learned Judge by saying "this argument does not, however, cover a case where the tenant
has altogether ceased to be a tenant on the land after the sale, be it under the vendor or the
vendee. There is no allegation that the plaintiff has been dispossessed in any high-handed manner
and it had been said at the bar by the vendees' counsel that the plaintiff had vacated the land
under some private arrangement or settlement." The learned Judge went on to say "the principle
of law is well established that the plaintiff in a pre-emption suit has to show his superior right on
three crucial dates, namely, the date of sale, the date of institution of suit and the date of decree.
As the plaintiff could not show his superior right of pre-emption at the date of the institution of
the suit, the suit, according to the lower appellate Court, had been rightly thrown out by the trial
court. In the opinion of the learned Judge, the more proper way for the trial Judge was as to have
dismissed the suit rather than reject the plaint under Order 7, rule 11, Civil Procedure Code. The
appeal was accordingly dismissed.

5. Against this decision, the present second appeal has been filed by the plaintiff Sohan Singh.

The relevant part of section 15 of the Punjab Pre-emption Act runs thus :-

        "The right of pre-emption in respect of agricultural land and village immovable property
        shall vest -

        (a) where the sale is by a sole owner;

        First, * * * * *

        Secondly, * * * *

        Thirdly, * * * *

        Fourthly, in the tenant who holds under tenancy of the vendor the 'land or property sold or
        a part thereof; * * * *"

6. The facts on which the courts below have proceeded are that the plaintiff was holding the land
in suit under the tenancy of the vendor at the time of sale, but on the date when he filed the suit,
he was not in possession of the land either as a tenant of the vendor or the vendee There was no
allegation that the plaintiff had been forcibly dispossessed from the land in suit. On these facts,
could it be said that the plaintiff had no cause of action to bring the suit which should be
dismissed on that ground alone? According to section 15(1)(a) Fourthly, a tenant who holds the
land under the tenancy of the vendor at the time of sale has a right of pre-emption. According to
the facts of the case, as mentioned above, the plaintiff had a right of pre-emption at the date of
the sale. The Punjab Pre-emption Act nowhere says that the pre-emptor should retain his
qualifications for pre-empting the land till the date of the decree. It is true that the decisions have
laid down that the plaintiff's preferential right must exist on the three important dates, viz., of
sale, suit and decree. These rulings were, however, given before the legislature gave the right of
pre-emption to a tenant of the vendor. It is undisputed that after the sale the tenant cannot hold
the land sold under the tenancy of the vendor, because the vendor no longer remains the owner of
the property and the title in the same passes to the vendee. It is a different matter that after the
sale the vendee may still retain him as his own tenant, but even if he becomes the tenant of the
vendee that does not afford him a ground for pre-empting the land, because as already mentioned
above, it is only the tenant of the vendor who holds the land sold, who has a right of pre-emption,
If the well settled principle of law relied upon by the courts below were to be applied to the case
of a tenant pre-emptor as well, then it would be depriving him of his right of pre-emption given
by the statute. The legislature could not have intended this result, because it is supposed to know
the well settled principles of law when it amended the Punjab Pre-emption Act and gave the right
of pre-emption to the tenant of the vendor. As I have said, it would not have made any difference
if at the date of the institution of the suit, the plaintiff had become the tenant of the vendee
instead of the vendor, as perhaps the learned Additional District Judge seemed to think.
Similarly, even if the plaintiff had been forcibly dispossessed from the land, that too would not
change the situation, because in that case also it could not be said that he was the tenant of the
vendor at the time of the institution of the suit. Thus, the tenant who holds the land sold under the
tenancy of the vendor had a right of pre-emption and in order to succeed he has not to retain this
qualification on the date of the institution of the suit or at the time of the decree.

The view that I have taken above finds support in the decision of D. K. Mahajan. J., in (Chuhar
Ram v. Shri Kashmiri Lal1), decided on 21st December, 1964, where the learned Judge remarked
:-

        "The requirement of the statute is that a tenant when he wants to pre-empt the sale has
        only to show that he is the tenant of the vendor and not that he must continue to be a
        tenant of the vendee. Therefore, the argument of the learned counsel that the plaintiff did
        not possess the requisite qualification on the date of the decree is pointless."

7. In view of what I have said above, this appeal succeeds and the judgments and the decrees of
the courts below are set aside. The case is remanded to the trial court for proceeding in
accordance with law. There will, however, be no order as to costs. The parties have been directed
to appear before the trial court on 27th March, 1967.

Cases Referred.

1R.S.A. 425 of 1964