Bhagwan Das (Dead) by LRS. & Ors Vs.
Chet Ram  INSC 221 (16 October 1970)
16/10/1970 GROVER, A.N.
CITATION: 1971 AIR 369 1971 SCR (2) 640 1971
SCC (1) 12
F 1975 SC1869 (1,3,5) RF 1977 SC1206 (3)
Punjab Pre-emption Act (1 of 1913), s. 15(1)
(a) FourthlySale of land-Tenant dispossessed and tenancy terminated-Suit for
possession by pre-emption-Maintainability.
The appellants purchased certain lands and
filed a suit against the respondent, who was the tenant-at-will under the
vendor, for ejectment The suit was decreed. The appellants entered into
possession and the tenancy of the respondent was determined. Thereafter, the
respondent filed a suit for possession by pre-emption under s. 15(1) (a)
Fourthly of the Punjab Pre-emption Act, 1913 which provides that a right of
preemption vests in a tenant who holds, under tenancy of the vendor the land or
property sold or a part thereof. It was contended that it was sufficient if the
plaintiff proved that he was a tenant under the vendor on the date of the sale.
HELD: The well-established principle being
that a preemptor must maintain his qualification to preempt upto the date of
the decree for possession by pre-emption, the Legislature cannot be attributed
the intention of giving the tight to a tenant who has been dispossessed and
whose tenancy has been determined either before or during the pendency of his
suit, claiming the right of pre-emption.
This is particularly so as the statutory
right of presumption is one which attaches to the land and is not a mere
personal right. [641 H; 642 A-B, F-G; 643 A-B] Hans Nath v. Ragho Prasad Singh,
59 I.A. 138, Thakur Madho Singh v. Lt. James R. R. Skinner, I.L.R.  23
155, Faiz Mohammad v. Fajar Ali Khan, I.L.R.
 25 Ladfl 473 and Surjit Singh v. Gurnam Singh, (1964) P.L.R. 1063,
Ramji Lal v. State of Punjab, (1966) 68
P.L.R. 345 (F.B.), approved.
Kashmiri Lal v. Chuhar Ram, (1970) 72 P.L.R.
325 and Sohan Singh v. Udho Ram, (1967) P.L.R. 414, over-ruled.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 192 of 1970.
Appeal by special leave from the,, judgment
and order dated December 15, 1969 of the Punjab and Haryana High Court in
R.S.A. No. 1949 of 1968.
S. C. Manchanda, S. K. Mehta, K. L. Mehta,and
K. R. Nagraj, for the appellant.
Rameshwar Dial, S. K. Bagga, S. D. Sood and
S. Bagga, for the respondent.
641 The Judgment of the Court was delivered
by Grover, J. This is an appeal by special leave from a judgment of the Punjab
& Haryana High Court.
In December 1966 Labhu Ram who was the owner
of the land in dispute sold the same in two lots to Bhagwan Das (do,ceased) now
represented by his legal representatives and others.
The lands mentioned in clauses (a) and (b) of
the title of the. Plaint in the suit out of which the present appeal has arisen
were sold for Rs. 20,000/and Rs. 1,000/respectively. The respondent Chet Ram
was a tenant-at-will of the lands covered by the sales. Bhagwan Das and others
filed a suit against Chet Ram in the revenue court for ejectment under s. 14A
(i) read with s. 9 ( 1 of the Punjab Security of Land Tenures Act 1953 which
was decreed on July 31, 1967. On August 31, 1968 Bhagwan Das and others entered
into possession of the aforesaid lands after evicting Chet Ram by virtue of the
decree for eviction obtained against him.
After his eviction Chet Ram the present
respondent filed a suit for possession of the lands which were the subject
matter of sale by pre-emption under s. 15(1)(a) FOURTHLY of the Punjab
Preemption Act, 1913, (Punjab Act 1 of 1913), hereinafter called the 'Act',. By
that provision the right of pre-emption has been declared to vest in the tenant
who holds under tenancy of the vendor the land or property sold or a part thereof.
It was admitted before the trial court that the respondent was a tenant before
July 31,. 1967 and that before the institution of the pre-emption suit his
tenancy had been determined. The trial court dismissed the suit. On appeal the
learned Additional District Judge, in view of certain decisions of the Punjab
High Court, allowed the appeal and decreed the suit. The judgment was upheld in
second appeal by the High Court.
The sole question for determination is
whether a person who has ceased to hold the land sold as a tenant can succeed
in a suit for possession by pre-emption under s. 15(1)(a) FOURTHLY. The Punjab
& Haryana High Court in Kashmiri Lal & Others v. Chuhar Ram(1) had
expressed the view that in a suit based on a right under the aforesaid clause
the plaintiff was required to prove only that he was a tenant under the vendors
on the date of the sale and not at any time thereafter as he could not remain a
tenant under the vendors after they had sold the property. In certain other
judgments delivered by learned single judges of the Punjab High Court it had
been recognised that the rule was firmly established in the law relating to
pre-emption that a preemptor in order to succeed must have a right to pre-empt
not only at the (1) Letters Patent Appeal No. 71 of 1965 decided on November
19,1969; (1970), 72 P. L. R. 325.
642 time of sale but also at the institution
of the suit and the passing of the decree by the trial court. In other words,
the pre-emptor's right should subsist up to the date of the passing of the
decree and if he lost that right at any time before the decree was granted his
suit must fail. These learned judges of the High Court, however, considered
that the language of s. 15 (1) (a). FOURTHLY ,showed that the legislature
intended to depart from the well settled principle mentioned before and all
that has to be seen is whether the plaintiff was a tenant of the vendor on the
date of sale (see Sahan Singh v. Udho Ram & Others(1).
In Hans Nath & Others v. Ragho Prasad
Singh (2) it was laid down by the Privy Council that the decisive date as
regards the right of a pre-emptor to pre-empt the sale was the date of the
decree. A. full bench of the Lahore High Court in Thakur Madho Singh &
Another v. Lt. James R. R. Skinner & Another(1) while considering the
relevant provisions of the Act applied this rule to a case where a vendee had
improved his status during the pendency of the pre-emption suit and held that a
vendee could de-feat the right of a pre-emptor by improving his status at any time
before the passing of the decree. The right of pre-emption is a weak one and is
liable to be defeated by, all legitimate means at the instance of a vendee
against whose contract an inroad is being attempted by the pre-emptor. The
vendee is on the defensive and is entitled to arm himself with a shield in
order to protect his right. The pre-emptor is an aggressor and as he wishes to
dislocate the vendee he must show that the superior right of pre-emption which
he had at the date of the sale continued to remain superior at all relevant
times: vide Faiz Mohammad v. Fajar Ali Khan & Another(1) (Full Bench). In
the latest full bench decision of the Punjab High Court in Ramji Lal &
Another v. The State of Punjab & Others(-) the rule that a pre-emptor must
maintain his qualification to pre-empt upto the date of the decree was
recognised as well settled.
'In the presence of the above principle which
is firmly entrenched in the law of pre-emption it is difficult to conceive that
the legislature intended to depart from it in s. 15 (1) (a) FOURTHLY nor has
any reason been suggested for doing so. The language employed is not very happy
but the clear requirement is that the tennantmust hold the land as such. If his
tenancy, has come to an end and he has been dispossessed it can never be said
that he is holding the land under tenancy of any one. The legislature can
hardly be attributed the intention of giving the right to a tenant, who has
been dispossessed and whose tenancy has been (1)  P. L. R. 413.
(2) 59 I.A. 138.
(4) 1. L.R.  25 Lah. 473.
(3) 1. L. R.  23 ILah. 155.
(5) (1966) 68 P. L. R. 345.
643 determined either before or during the
pendency of the suit, to obtain a decree for possession by pre-emption. This is
particularly so as the statutory right of pre-emption is one which attaches to
the land and is not a mere personal right.
There could be no basis for the legislature
giving an indefeasible right to a person who happens to be in possession of the
land sold as a tenant of the vendor. His right is neither better nor worse than
any other person who has been conferred that right by the provisions of s. 15
of the Act. For instance, a co-sharer has been given a right to pre-empt the
sale of a share out of joint land by clause (b) FOURTHLY of s. 15(1). If a
co-sharer must retain his right upto the date of the decree, which he must,
(See Surjit Singh v. Gurnam Singh etc.(1) there is no intelligible ground for
treating a tenant differently. The tenant must show his right at all material
times before he can succeed in a suit for pre-emption. In other words his
tenancy must remain intact and he must hold the land in his capacity as a
tenant till the date of the decree.
It must be remembered that sale alone does
not and cannot divest the tenant of his' right to hold the land of which he is
in possession by virtue of his tenancy under the vendor. But if his tenancy is
determined by a decree for eviction he loses his status of a tenant. He then
does not satisfy the first requirement of s.15(1) FOURTHLY that he is a tenant
who holds the land. In that situation he cannot succeed in a pre-emption suit
if the decree for eviction has been passed after the sale but before the
institution of the suit or during its pendency and before the date of the decree.
This would be so by applying the well established rule which, as stated
earlier, has become a part of the law relating to pre-emption.
In the present case not only a decree for
eviction was passed against the respondent but he was also actually dispossessed
from the land in his tenancy pursuant to the decree before he filed the
pre-emption suit. We are altogether unable to see how he could be granted a
decree in such a suit.
An attempt was made by means of C.M.P. No.
4634 of 1970on behalf of the respondents to reopen the question of the area in
respect of which the decree for eviction had been passed on July 31, 1967. It
was maintained that it related only to certain Khasra Numbers which were
covered by the first sale shown as clause (a)in the heading of the plaint and
that there was no order relating to eviction from the land covered by the
second sale mentioned in clause (b) therein.
This question was never raised in the courts
below and as it involves an investigation into matters of (1) (1964) P. L. R.
644 fact it was not possible to allow the
same to be reopened at this stage.
The appeal is allowed and the suit of the
respondent is dismissed. In view of-the nature of the points involved the
parties are left to bear their own costs in this Court.