MUNSHI Vs. RTCHPAL

JUDGEMENT

(1.) This appeal by Special leave which is directed against the judgment and order dated September 24, 1969, of the High Court of Punjab and Haryana at Chandigarh, passed in R. S. A. No. 983 of 1969 arises in the following circumstances.

(2.) Bhawani Dass, respondent No. 2 herein, who owned agricultural land measuring 50 kanals and 6 marlas comprised in Khewat No. 223, Khatauni No. 467-468, situate in village Kohlawas, Tehsil Dadri, District Mohindergarh, sold the same to Munshi, Dina and Rani Dutt, appellants before us, in lieu of Rupees 10,000/- by means of registered sale deed (Exh. D-1) dated October 17, 1966. Alleging that he held as a non-occupancy tenant under Bhawani Dass the aforementioned land on the date of its sale to the appellants and had continued to do so and as such had a preferential right of its purchase under clause Fourthly of Section 15 (1) (a) of the Punjab Pre-emption Act, 1931 (Punjab Act 1 of 1913) which still applies to the State of Haryana, Richpal, respondent No. 1 herein, brought a suit on October 17, 1967 for possession of the said land by pre-emption, in the Court of the Sub-Judge, Charkhi Dadri. The suit was resisted by the appellants contending inter alia that the plaintiff respondent was neither a non-occupancy tenant of the land in question under Bhawani Dass, vendor, nor was he in possession of the land either on the day of the aforesaid sale or on the day of the institution of the suit. After settling the necessary issues and recording the evidence adduced by the parties, the trial Court by its judgment dated February 1; 1969, decreed the suit in favour of the plaintiff-pre-emptor on payment of Rs. 10,000/- (the consideration of the aforesaid sale) plus Rs. 727/- (the costs incurred by the vendees-appellants on the stamps, registration fee etc.) holding that he had been a tenant-at-will under the vendor from Kharif, 1957 to Rabi, 1968:that he was forcibly dispossessed after the sale; that wrongful eviction of a tenant could be of no consequence in the eye of law; that the plaintiff-pre-emptor continued to hold his rights as a tenant, including the right to immediate possession and cultivation of the land notwithstanding his wrongful ouster therefrom by the vendees, who could not be allowed to take advantage of their own wrongs and that the former must be deemed to continue in legal possession of the land which was comprised in his tenancy under the vendor on the date of the sale right upto the date of the suit and the date of the decree of the trial Court in his favour. The trial Court further held that a tenant's eviction can only be had under Sections 7 and 7A of the Pepsu Tenancy and Agricultural Lands Act, 1955, and there is nothing on the record of the case to even insinuate that the plaintiff's tenancy which subsisted at the time of the impugned sale was ever determined or terminated under Section 7 or 7A of the Act and the plaintiff who was in physical possession of the land in suit as a tenant at the time of the sale has to be taken to be in legal possession uptil the present moment. In conclusion, the trial Court held that the mere act of forcible dispossession of the plaintiff-pre-emptor at the hands of the vendees after the sale could not have the effect of divesting him of his right to hold the land which he had acquired as a tenant of the vendor and in the eye of law he must be presumed to have con tinued to be a tenant all along and as such had a preferential right of pre-emption. The judgment and decree passed by the trial Court was affirmed in appeal not only by the Additional District Judge, Gurgaon, but also by a learned single Judge and Letters Patent bench of the High Court. Aggrieved by these decisions, the vendees-appellants have, as already, stated, come up in further appeal to this Court.

(3.) The sole point that has been urged before us on behalf of the appellants is that as according to the decision of this Court in Bhagwan Das v. Chat Ram, (1971) 2 SCR 640 the plaintiff-pre-emptor has to prove his subsisting right of pre-emption on all the three material dates viz. (1) the date of sale, (2) the date of institution of the suit and (3) the date of passing of the decree and in the instant case, he failed to file a suit in the revenue court for recovery of possession of the suit land within one year of the date of his dispossession as contemplated by Section 50 of the Punjab Tenancy Act, 1887 not only his remedy was destroyed but his right and title was also extinguished at the expiry of that period on the general principles underlying Section 27 of the Limitation Act, 1963, which may not in terms be applicable to the present case. Though the learned counsel for the appellants cited a few cases in support of his contention but did not unfortunately bring to our notice the decision of this Court in Dindyal v. Rajaram, (1971) 1 SCR 298 which may in an appropriate case require reconsideration by a larger bench of this Court, we think, he cannot be allowed to canvass the aforesaid point. A reference to the record of the case shows that the point now sought to be agitated before us was not raised by the appellants either in their written statement or in the grounds of the three appeals preferred by them before the courts below. All that appears from the record to have been urged by them in the grounds of the aforesaid appeal was that the evidence had not been properly appraised and that in the absence of any lease deed in his favour or any receipt evidencing payment of rent by him to the vendor, mere entries in the Khasra girdawaries were not enough to establish that the plaintiff-pre-emptor was a tenant of the suit land under the vendor at the time of the sale. The suit land being situate in the district of Mohindergarh which formed part of the territories of the erstwhile State of Pepsu the case, as rightly observed by the court of first instance, was governed by Sections 7 and 7A of the Pepsu Tenancy and Agricultural Lands Act, 1955, which in view of Section 4 of that Act have an overriding effect and provide as under-