DHARAM KAUR Vs. MUKHTIAR SINGH

JUDGEMENT

(1.) The appellant purchased certain land from one Bihari. The respondent claiming to be a tenant under Bihari filed a suit against the appellant seeking preemption in respect of a portion of the said land under the Punjab Pre-emption Act, 1913. The suit was decreed in favour of the respondent. The appellant's appeal was dismissed. This appeal has been preferred from the rejection of the appellant's second appeal by which the High Court affirmed the First Appellate Court's decision.

(2.) Section 4 of the 1913 Act provides for the procedure for claiming a right of preemption. According to the appellant, the substantive right of pre-emption has been provided in the Punjab Security of Land Tenures Act, 1953, Section 17 of which reads;

(3.) There is no dispute that the right of preemption was claimed by the respondent as a tenant. It is the submission of the appellant that neither in the plaint nor in any of the decisions of the courts' below was this aspect of the matter considered, namely whether the respondent had fulfilled the conditions subject to which a tenant could claim a right of pre-emption. However, neither the applicability of the Punjab Security of Land Tenures Act, 1953 nor the non-fulfillment by the respondent of the conditions under Section 17 had been raised by the appellant before any of the courts. The only issue raised was whether the respondent was a tenant in respect of the land in dispute. The trial court, the First Appellate Court as well as the High Court in second appeal have found that the respondent has been able to establish his right as a tenant in respect of the said land. The issue now sought to be raised by the appellant is a mixed question of fact and law. Not having raised the issue before the courts below, the appellant is precluded from agitating the matter before us at this stage.