SHINGARA SINGH Vs. RAGHBIR SINGH

JUDGEMENT

(1.) This appeal is directed against the judgment dated April 15, 1977, rendered by the learned Senior Subordinate Judge, Karnal, exercising enhanced appellate powers. The land in dispute was held by Bal Mukand, respondent No. 3, and his co-sharers. Bal Mukand sold 30 Kanals of land falling to his share in favour of the respondents Nos. 1 and 2. The appellant filed a suit for pre-emption on the ground that he being tenant of the vendor in respect of 18 Kanals 4 Marlas of land, he had a preferential right to obtain the same. This plea raised by him prevailed with the learned trial Court but was negatived by the learned lower appellate Court. Feeling aggrieved against the judgment and decree passed by the learned lower appellate Court, he has come up second appeal before me.

(2.) The learned lower appellate Court has non-suited the appellant on the ground that his suit being one for partial pre-emption was bad and that he had not pleaded in the plaint that he was a tenant under the vendor.

(3.) After hearing the learned counsel for the parties at some length I am of the view that the plea raised on behalf of the appellant deserves to succeed. A perusal of sale deed Exhibit D.2 and copies of Khasra Girdawaris Exhibits P.2 to P.6 shows that the appellant was shown as a tenant in respect of 18 Kanals and 4 Marlas of land which was within the exclusive possession of Bal Mukand respondent. In Moti Ram and others v. Bakhwant Singh and others, 1967 69 PunLR 1041, Dhani Ram v. Karam Chand, 1970 72 PunLR 73 and Telu Ram and others v. Shrimati Iqbal Kaur, 1973 PunLJ 221 it has been consistently held that it is open to a tenant to file a suit for that much portion of the land sold which was found to be belonging to the vendor and constituting his tenancy. In this view of the matter the plea of the partial pre-emption raised against the appellant should not have been allowed by the learned lower appellate Court. Mr. M.S. Liberhan, learned counsel for the respondents, has argued that if the revenue record is properly perused, it shows that the appellant was recorded as a tenant in respect of 23 Kanals 3 Marlas of land under the five co-sharers. There is no merit in this contention raised by the learned counsel for the respondents. The law of pre-emption allows a tenant to pre-empt that land which he holds as tenant under the vendor and nobody else.