CHARANJIT LAL Vs. RAM SARUP

JUDGEMENT

(1.) The sole question on which this regular second appeal has been referred to this larger Bench is as to whether the land sold by the vendor not to his tenant but acquired by him through pre-emption decree would be covered by the provisions of Section 17-A of the Punjab Security of Land Tenures Act and, therefore, the suit for pre-emption by a person having admittedly a better right of pre-emption than the tenant would not be competent.

(2.) The land in dispute was sold by Dewan Chand, Hukam Chand and their sister Smt. Shanti Devi to Ram Sarup and his three brothers vide deed dated Mar. 8, 1965. Budhu, respondent No. 5 filed a suit for possession of this land by way of pre-emption on the ground that he was holding the said land as tenant at the time of its sale under the vendor which was decreed on compromise on Nov. 4, 1966. In the meanwhile, prior to the date of the said decree, Charanjit Lal, appellant, son of Dewan Chand, vendor, and nephew of other two vendors filed the present suit to pre-empt the said sale which was dismissed by the trial Court on the ground that the suit land having been transferred in favour of the tenant in recognition of his right of pre-emption and the rule of lis pendens being not applicable, the sale in favour of tenant was protected by the provisions of Section 17-A of the Land Tenures Act and, therefore, not preemptible. On appeal, the view of the trial Court was upheld by the learned Additional District Judge, Karnal vide judgment dated Dec. 7, 1968 which led to the filing of this second appeal by the plaintiff.

(3.) The learned counsel for the appellant assailing the correctness of the view of the Courts below contended that the provisions of Section 17-A of the Land Tenures Act save only the sale made in favour of tenant and the same cannot be extended to acquisition of the property acquired by a tenant in exercise of his right of pre-emption under the Punjab Pre-emption Act (hereinafter called the Pre-emption Act). The learned counsel for the tenant, on the other hand, argued that once the land stood transferred to the tenant in exercise of his right of pre-emption under the compromise decree, he is deemed to have been substituted in place of the original vendee and it is open to him to put up all the defences to defeat the suit of pre-emption which have been available to him if the sale was made primarily in his favour. In the alternative he argued that once the right of pre-emption has bee exercised successfully by the tenant without following the procedure contained in S. 28 of the Pre-emption Act, no second decree for the right of pre-emption can be passed.