Sunder Singh & Ors Vs. Narain
Singh & Ors [1966] INSC 73 (11 March 1966)
11/03/1966
ACT:
Patiala and East Punjab States Union Holdings
(Consolidation and Prevention of Fragmentation) Act 5 of 2007 BK, ss. 24 and
25-Land sought to be pre-empted exchanged for other land in consolidation
proceedings-pre-emptor's right to follow the land to which his right attaches.
HEADNOTE:
The appellants purchased certain lands in the
State of Punjab and the respondents filed a suit claiming a right of preemption
thereon. Under a scheme of consolidation, however, the appellants had before
the filing of the suit, been allotted some other lands in lieu of the lands
purchased by them, and they contended that the right of pre- emption claimed by
the respondents did not extend to these lands. The trial court and the High
Court decreed the respondents' suit holding on the oasis of s. 24 of the
Patiala and East Punjab States Union Holdings (Consolidation and Prevention of
Fragmentation) Act 5 of 2007 BK that it was open to pre-emptor to follow the
land which had been given to the vendees in consolidation proceedings in lieu
of the land which was the subject matter of the sale-deed. The appellants came
to this Court by special leave.
HELD : Section 24 when it says that the
landowner or the tenant at will shall have the same right in the land allotted
to him as he bad in his original holding or tenancy clearly preserves the
obligation that may be on the land in the nature of a disability. The
consequence therefore is that the ordinary law of pre-emption under which the
pre- emptor his the right to follow the land which is the subject-matter of the
sale-deed becomes expanded and the land allotted to the landlord and tenant at
will in lieu of the land which may have been subject to pre-emption also
becomes subject to pre-emption in the same way as the original holding or the
tenancy. This inference is not negatived by the special provisions of s. 25 in
respect of leases and mortgages or other encumbrances. [866 G; 867 D-E] Shri
Audh Behari Singh v. Gajadhar Jaipuria, [1955] 1 S.C.R.
70, Bishan Singh v. Khazan Singh, [1959]
S.C.R. 878 relied on.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 822 of 1963 Appeal by special leave from the judgment and decree dated
April, 7, 1961 of the Punjab High Court in Regular First Appeal No. 32 of 1957.
Bishan Narain and B. P. Maheshwari, for the
appellants Nos.
1-3 and 5-10.
M. V. Goswami, for appellant No. 4.
Bhawani Lal, E C. Agarwala, Ganpat Rai and
P.C. Agarwala, for respondent Nos. 1(i)-1(vi).
864 The Judgment of the Court was delivered
by WANCHOO, J.-This is an appeal by special leave from the decree of the Punjab
High Court in a suit brought by the plaintiffs-respondents for pre-emption. The
appellants are vendees to the sale which was preempted. The facts found by the
courts below are these. The property in suit consisted of agricultural land as
well as some baras in village Jalalpur. Punnu Singh and Mansha Singh who were
also parties to the suit as defendants sold the property in suit on January
15,1955 to the appellants. Thereafter consolidation proceedings took place in
this village and came to an end before the present suit was filed on January
14, 1956. Of the vendees, six had no share in the village from before while
four already had some share in the village. As a result of the consolidation
proceedings, six of the vendees who had no share in the village from before
were allotted other land in place of the land which they had purchased under
the sale-deed. The other four vendees who had some share in the village from
before were allotted land in two blocks in lieu of the land they had in the
village from before as well as the land which they had purchased by the sale
deed in question. The plaintiffs-respondents instituted the suit on the basis
of their being collaterals and co-sharers and wanted that they should be given
out of the land allotted to the vendees in consolidation proceedings such land
as they would be entitled to after pre-emption of the sale in question.
The suit was resisted by the appellants on a
number of grounds. The main ground of defence with which we are concerned in
the present appeal was whether the suit was maintainable with respect to the
land which had been obtained by the vendees during consolidation proceedings in
lieu of the land which was the subject matter of the sale deed. The trial court
held in favour of the plaintiffs- respondents and granted a decree for
pre-emption. On ,appeal to the High Court by the vendees, the High Court held
on the basis of S. 24 of the Patiala and East Punjab States Union Holdings
(Consolidation and Prevention of Fragmentation) Act, No. 5 of 2007 Bk.
(hereinafter referred to as the Act), that it was open to the pre-emptor to
follow the land which had been given to the vendees in consolidation
proceedings in lieu of the land which was the subject matter of the sale deed.
Further in the High Court another point was raised on behalf of four of the
appellants who had land from before in the village and it was urged that in
their case it was not possible to distinguish which land had been allotted to
them in place of the land sold and therefore no pre-emption decree should be
granted. This argument was also rejected by the High Court, and the appeal was
dismissed. The High Court having refused the certificate, the appellants
applied and obtained ,special leave from this Court; and that is how the matter
has come before us.
86 5 The main question that has been argued
before us is that the suit is not maintainable as it is not open to the
pre-emptor to follow the land which might have been obtained by the vendees in
lieu of the land actually sold to them. The answer to this question depends
upon the interpretation of s. 24 of the Act in the background of the law of
pre- emption. In Shri Audh Behari Singh v. Gajadhar Jaipuria,(1) this Court
held that- "The correct legal position seems to be that the law of
preemption imposes a limitation or disability upon the ownership of a property
to the "extent that it restricts the owner's unfettered right of sale and
compels him to sell the property to his co-sharer or neighbour as the case may
be The crux of the whole thing is that the benefit as well as the burden of the
right of preemption run with the land and can be enforced by or against the owner
of the land for the time being although the right of the preemptor does not
amount to an interest in the land itself The right of preemption is an incident
of property and attaches to the land itself......................." This
Court had occasion to consider the matter again in Bishan Singh v. Khazan
Singh(2) and pointed out that the right of preemption is not a right to the
thing sold but a right to the offer of a thing about to be sold, this being the
primary or inherent right, and that the preemptor has a secondary right or a
remedial right to follow the thing sold. Reliance is placed on behalf of the
appellants on this later decision and it is stressed that the preemptor's
remedial right is merely to follow the thing sold, namely, the very property which
is the subject-matter of the sale- deed under preemption.
The later decision on which reliance is
placed does not in any manner affect the earlier decision where it was held
that the right of preemption is an incident of property and attaches to the land.
It is true, as held in the later decision, that ordinarily the right of the
preemptor is to follow the property which is the subject-matter of the sale
deed. The question which, however arises in the present case is whether s.24 of
the Act makes any difference to this ordinary position of the law of
preemption. That section reads as follows:- "A land-owner or a tenant at
will shall have the same right in the land allotted to him in pursuance of the
scheme of consolidate on as he had in his original holding or tenancy as the
case may be." Clearly the effect of this provision is to give to the land-
owner or a tenant at will the same right in the land which he acquires under
the scheme of consolidation in lieu of that land which he had before the consolidation
proceedings.
He cannot get more (1) [1955]1 S.C.R 70, (2)
[1959] S.C.R. 878.
866 rights than he had before nor can be get
any less rights.
It is urged that section only preserves the
rights and has nothing to do with obligations to which the land may be subject.
We are of opinion that this is not so. When the section lays down that the
land-owner or a tenant at will shall have the same right in the land allotted
to him in pursuance of the scheme of consolidation as he had in his original
holding or tenancy, it clearly implies that obligations would also remain the
same. If that were not so and if his obligations were to disappear he would
acquire more right in the land allotted to him than he had in the original
holding or tenancy. For example, if the land-owner had only a life interest in
the original holding he would get the same life interest in the land allotted
to him and could not claim to be absolute owner of the land allotted in
consolidation proceedings. Thus the obligation which attached to his ownership
of his original holding (namely, that it was subject to all the disabilities of
a limited owner) would also apply to the land allotted to him in consolidation
proceedings. Therefore when S. 24 speaks of the landowner or the tanant at will
having the same right in the land allotted as he had in the original holding or
tenancy, it brings in all the rights and obligations which were attached to his
ownership or tenancy of the land originally held.
It is in this background that the nature of
the right of preemption as held in Audh Behari Singh's case (1) assumes
importance. In that case it was held that the law of pre- emption imposes a
limitation or disability upon the ownership of a property and that the benefit
as well as the burden of the right of preemption run with the land.
Therefore if the original holding of the
landowner was subject to the disability of preemption the land allotted in lieu
thereof will be equally subject to the same disability.
This will however always be subject to the
law of pre- emption itself, and to the well-settled principle of pre- emption,
namely, that the preemptor must have a right of preemption at the date of the
sale, at the date of the suit and finally at the date of the decree. Section 24
when it says that the landowner or the tenant at will shall have the same right
in the land allotted to-him as he a in his original holding or tenancy, clearly
preserves the obligation that may be on the land in the nature of a disability.
The consequence therefore is that the ordinary law of preemption under which
the preemptor has the right to follow the land which is the subject-matter of
the sale deed becomes expanded and the land allotted to the land-owner or
tenant at will in lieu of the land which may have been subject to preemption
also becomes subject to preemption in the same way as the original holding or
tenancy. So it follows that if the land allotted in lieu of the original
holding or tenancy is preemptible under the law of pre- emption and the right
of preemption still exists on the three dates to which we have (1)[1955] 1 S.
C.R, 70.
867 already referred, the pre-emptor would by
virtue of s.24 be able to enforce his rights against land which may have been
allotted to the vendee in lieu of the land which was actually the
subject-matter of sale. We are therefore of the opinion that the construction
of s. 24 by the High Court is correct and the plaintiffs-respondents have a
right by virtue of s. 24 of the Act to preempt the land which was allotted to
the appellants in lieu of the land which was the subject-matter of the
sale-deed.
It is however urged that s. 25 of the Act
specifically provides for rights with respect to a lease, mortgage or other
encumbrance to attach to the land allotted in place of the original holdings,
and that shows that no other rights were intended to survive. We are of opinion
that there is no force in this argument. It was necessary to enact s. 25 when
dealing with leases, mortgages and encumbrances for without such a specific
provision, a lease, mortgage or encumbrance which was on one piece of land
could not in law attach to another piece of land. This however is very
different from an incident of ownership of land e.g. liability to preemption
which attaches to the land itself and continues to attach to the land allotted
in lieu of the original holding or tenancy by s. 24. The special provisions,
therefore in s. 25 do not negative the inference that obligations which attach
to the right of ownership of the original holding or tenancy would continue to
attach to the land allotted in lieu thereof in consolidation proceedings.
This brings us to the subsidiary contention
which was raised in the High Court, namely, that four of the vendees were
allotted land in lieu both of what they owned from before and what they got
under the sale deed in question. The High Court has held and we think
rightly-that there should be no difficulty in finding out how much of the land
allotted pertains to the land which was the subject-matter of the sale-deed. Land
is always valued for purposes of allotment during consolidation proceedings and
it would not therefore be difficult to find out how much land was allotted Io
these four vendees in place of the land which they got by the sale deed.
Lastly it is urged that the form of the
decree is incorrect.
This submission is made on the basis of the
following sentences in the judgment of the trial court:
"It does not mean that the land is not
distinguishable. It can be considered during execution at the time of delivering
the possession of the land." We have not permitted learned counsel to
raise this point for the first time before us, as it was not raised in the High
Court. We therefore reject this contention.
The appeal fails and is hereby dismissed.
Costs as per order dated 8-9-65.
Appeal dismissed.
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