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2009 DIGILAW 842 (PNJ)

Ranjit v. Lilu Ram

2009-04-30

VINOD K.SHARMA

body2009
JUDGMENT Vinod K. Sharma, J. (Oral).:-This regular second appeal is directed against the judgment and decree dated 5.2.2009 passed by the learned Courts below, vide which the suit filed by the plaintiff/respondent for possession by way of pre-emption, stands decreed. 2. The plaintiff/respondent brought a suit for possession by way of pre-emption to pre-empt the sale of land measuring 2 kanals 13 marlas, sold in favour of the defendant/appellant, by claiming superior right of pre-emption being tenant over the suit property. It was also pleaded that the sale consideration depicted in the sale deed was not correctly depicted with a view to defeat the right of pre-emption. 3. The suit was contested by the defendant/appellant on the plea that the plaintiff/respondent did not have superior right of pre-emption, for the reason that he was co-sharer in the property in dispute and, therefore, could not seek right of pre-emption against other co-sharer. The plea was also raised that the plaintiff/respondent was not tenant over the property in dispute, as he was not recorded as tenant in the revenue record and, therefore, could not be said to have superior right of preemption. 4. The learned Courts below decreed the suit by holding, that the plaintiff/respondent was tenant over the suit property and, therefore, had a preferential right of pre-emption. 5. The learned counsel appearing on behalf of the appellant contends that the appeal raises the following substantial questions of law: - “1. Whether a suit for possession by way of pre-emption against a co-sharer is competent by other co-sharer? 2. Whether the judgment and decree passed by the learned Courts below suffers from mis-reading of oral and documentary evidence in holding the plaintiff/respondent to be a tenant over the suit property, thus, perverse?” 6. In support of the first substantial question of law, the learned counsel for the appellant contends, that it was not in dispute that the plaintiff/respondent had purchased a part of the land, resultantly acquired the status of a co-sharer in the suit property, therefore, the suit filed by him for seeking possession by way of pre-emption was not competent. In support of this contention, the learned counsel for the appellant has placed reliane on the judgment of this Court in Rajinder Singh and others Vs. Pirthi and others, 2007(1) RCR (Civil) 552, wherein this Court was pleased to lay down as under: - “ 16. In support of this contention, the learned counsel for the appellant has placed reliane on the judgment of this Court in Rajinder Singh and others Vs. Pirthi and others, 2007(1) RCR (Civil) 552, wherein this Court was pleased to lay down as under: - “ 16. In the present case, Nagina was the exclusive owner. He had sold specific khasra numbers to respondent Nos.1 and 2 and conferred rights of exclusive ownership of those khasra numbers on respondent Nos.1 and 2. The respondents did not get any right of partition with Nagina. It may be that Khewat was the same or Rectangle was the same but it does not make respondent Nos.1 and 2 to be joint owners or co-sharers with Nagina who was the exclusive owner of some land out of which he sold specific part of the land to the respondents by specific khasra numbers. If Nagina had sold half share in the land owned by him to respondents No. 1 and 2 then these vendees would have become co-sharers and they would have acquired a right to seek partition with Nagina. But since Nagina had sold specific khasra numbers to respondent Nos.1 and 2, he had conferred full rights of ownership of those khasra numbers. The khewat and khatauni numbers would have been changed in the next Jamabandi after the sale to respondent Nos.1 and 2 and therefore, respondent Nos.1 and 2 cannot claim to be the joint owners or cosharers with Nagina merely because the khewat or the Rectangle was the same as they had purchased specific khasra numbers and exclusive ownership was conferred on them with regard to those khasra number by Nagina. This Court is, therefore, of the opinion that by purchasing specific khasra numbers vide sale deed dated 7.7.1988, respondent Nos.1 and 2 had not become co-sharers with Nagina. They had no right to seek partition from Nagina as they had become exclusive owners with regard to those khasra numbers irrespective of the fact that the Khewat or the Rectangle number was the same between the land of Nagina and of the land purchased by respondent Nos.1 and 2 and Nagina remained the exclusive owner of the unsold land. 17. 17. Since respondent Nos.1 and 2 were not co-sharers or joint owners or co-owners with Nagina vendor of the land left with Nagina,therefore, they did not acquire any right of pre-emption with regard to subsequent sale made by Nagina in favour of the appellants.” 7. This plea of the learned counsel for the appellant cannot be accepted. The plaintiff/respondent brought a suit for possession by way of pre-emption on the basis of superior right of pre-emption being a tenant. The learned Courts below have rightly come to the conclusion that by purchase of part of property, the status of tenant does not change, and he continues to be the tenant of the suit property. In support of this finding, reliance was placed on the judgment of the Hon’ble Supreme Court in Parmod Kumar Jaiswal and others Vs. Bibi Husn Bano and others, 2005(2) RCR (Civil) 629, wherein the Hon’ble Supreme Court while interpreting provisions of Section 111(d) of the Transfer of Property Act has been pleased to hold that when a tenant purchases ownership right of some of the co-owners, the tenancy does not come to an end and the tenant remains a tenant. Tenancy of a tenant can be extinguished only, if he purchases the entire rights of the landlord in whole of the premises. 8. The contention of the learned counsel for the appellant further was, that the judgment of the Hon’ble Supreme Court in Parmod Kumar Jaiswal and others Vs. Bibi Husn Bano and others (supra) has been wrongly applied, as it was a case of landlord and tenant and not under the Pre-emption Act. 9. This contention of the learned counsel for the appellant cannot be accepted, as the Hon’ble Supreme Court by way of proposition of law has laid down the principle, as to how the tenancy is extinguished. Admittedly, in the present case, the plaintiff/respondent has not purchased the entire land to change his status of tenant. 10. In support of the second substantial question of law, the learned counsel for the appellant contends, that in revenue record, produced on record, the plaintiff/respondent was not shown to be a tenant of the property in dispute, which was shown to be under the tenancy of his father, who had relinquished his right of tenancy during his lifetime. 11. 10. In support of the second substantial question of law, the learned counsel for the appellant contends, that in revenue record, produced on record, the plaintiff/respondent was not shown to be a tenant of the property in dispute, which was shown to be under the tenancy of his father, who had relinquished his right of tenancy during his lifetime. 11. This plea of the learned counsel for the appellant also cannot be accepted, as no proof of relinquishment of tenancy was proved. Furthermore, the learned Courts below have rightly placed reliance on the judgment of this Court in Ram Chand Vs. Randhir Singh and others, 1994(3) PLR 605 to hold, that the tenancy on the death of tenant would be continuous, and the legal heirs of the tenant would be the tenants. 12. No fault can be found with the findings recorded by learned Courts below. 13. The substantial questions of law raised are answered against the appellant. No merit. Dismissed. ---------------