KUNDAN Vs. FATEH

JUDGEMENT

(1.) Giani was the owner of the land in dispute and Kundan was his tenant. On 24th June, 1958, Giani mortgaged this land with possession to Kundan for Rs. 5,000/-. Thereafter, Kundan remained in possession of the property as heretofore. On 22nd December, 1965, Giani sold this land by a registered deed in favour of Fateh for Rs. 8,000/-. The mortgage amount was retained by the vendee to be paid to the mortgagee and there is no proof on the record as to whether that amount has been paid as yet or not. On 9th February, 1966, Kundan brought a suit against Feteh for possession of this land by pre-emption on the ground that he had a superior right, of pre-emption, being a tenant of the land under Giani at the time of sale.

(2.) The suit was resisted by the vendee, who pleaded that Kundan had not a superior right of pre-emption, because he was not a tenant of Giani on the date of sale.

(3.) Both the Courts below have dismissed the suit, holding that Kundan was not a tenant on the land under Giani at the time of sale. Against this decision, the present second appeal has been filed by Kundan.