ASA NAND Vs. SWATANTARPAUL SINGH, ETC.

JUDGEMENT

(1.) THIS appeal arises from a suit filed by the Plaintiff -Respondents for possession of the land in dispute claiming the right to pre -empt the sale on the ground of their having a superior right of pre -emption as compared to the vendees, the Defendant Appellants in this case. The Defendants, on the other hand, in their written statement, pleaded that the Plaintiffs had No. right of pre -emption, as the land at the time of sale was banjar qadim and Defendants 1 and 2 had reclaimed the same. It was also pleaded that the Defendants had constructed a house on the land in dispute prior to the sale as well as subsequent to the sale and had spent a lot of money in affecting improvements thereon and since the guardian of the Plaintiffs had seen them effecting improvements on the said land, they were estopped from filing the suit. They also pleaded that they were tenants over the land at the time of the sale and the sale was not pre -emptible. On the basis of the pleadings of the parties, the trial Court framed the following issues - -

(2.) MR . H.L. Sarin, Learned Counsel for the Appellants, has urged that the sale in question was not pre -emptible, as the land in dispute was not an agricultural land, as alleged by the Plaintiff -Respondents in their plaint. The Defendant -Appellants, in their written statement nowhere agitated that since the land was not an agricultural land, so the pre -emption suit was not maintainable, and accordingly No. issue was framed by the Court on this point. An attempt was made by the Defendants during the pendency of the appeal before the lower appellate Court to secure permission to amend the written statement, but their application to that effect was not allowed and the lower appellate Court had given good reasons for the same. I have also not been persuaded by the Learned Counsel for the Appellants to permit them to rake up that point in this second appeal. However, even if, for the sake of argument, the disputed land is not considered to be an agricultural land, it is not going to make any difference to the fate of the case, because Section 15 of the Punjab Pre -emption Act is attracted not only to the sale of the 'agricultural land', but also to the sale of the Village immovable property' which expressions are defined in Section 3 of the said Act as follows: - -

(3.) IN this Act, unless a different intention appears from the subject or context, -