VIR VIKRAM PARKASH Vs. CHITRU AND ORS.

JUDGEMENT

(1.) THESE two appeals (Regular Second Appeals Nos. 1047 and 1048 of 1961) have been bracketed together and deserve to be disposed of together because they involve identical question of law and fact.

(2.) THE controversy centres round the question whether the two sales of the properties in question are pre -emptible. On 4th July, 1958, ten biswas of land in all were sold by virtue of two sale -deeds, one of them relating to two biswas and the other to eight. The price of ten biswas was Rs. 3,000. In the sale -deeds the property sold was described as agricultural land and it was expressly recited therein that the vendee was entitled to use the land in any manner Ke liked including the construction of factories. Chatru, the Plaintiff, in both the suits, claiming to be a co -sharer instituted the two suits in January, 1960, basing his claim on, his status as a co -sharer in the land and describing the subject -matter of the sale to be agricultural land. Both the suits were resisted by the vendee on various grounds including the pleas of limitation and that the land sold was comprised in industrial area and, therefore, its sale was not subject to the right of pre -emption. The Courts of first instance decreed the suits and on appeal those decrees were affirmed. In respect of issue No. 6 (and it is this issue which deals with the plea of the land being comprised in industrial area in both the suits) the trial Court came to the conclusion that though the adjacent plots of lands had been acquired by third persons for industrial purposes and that factories had also been set up thereon, the land in question could not be held to be a waste land merely because the land sold was not under cultivation at the time of the sale. On appeal, the learned Senior Subordinate Judge referred to the copy of the last Jamabandi of the year 1945 -46 and of the Khasra Girdawaris of the years 1958 -59 and 1959 -60 and then after observing that as the sale took place on 4th July, 1958 and, therefore, the nature of the land to be seen is as on the date of the sale itself, the Court proceeded to observe that even if it were to be admitted that the land was banjar quadim it still did not take it out of the category of village immovable property. The Vendee, according to the lower Appellate Court, nowhere asserted to have reclaimed the banjar qadim land. Even after referring to Khasra Girdawari for 1958 -59, the Court observed that the land was uncultivated only for one crop in Kharif 1958 and the entry in Rabi 1958 showed that it had not been cultivated for two crops. From these entries, the Court inferred that the land was not banjar qadim. The vendee having not produced copies of Khasra Girdawaris prior to 1958, the Court apparently drew an adverse inference against him. The Court then considered the scope of Section 15 of the Punjab Pre -emption Act and observed that the argument that the land sold was not agricultural was of not much avail because it nevertheless retained the character of village immovable property and as such its sale was also pre -emptible. On this finding the Plaintiff's right to claim pre -emption was affirmed but slight modification in payment of sale -price was made.

(3.) "Agricultural land" as defined in Section 3 of the Punjab Pre -emption Act merely adopts the definition of the term "land" as contained in the Punjab Alienation of Land Act and "village immovable property" has been defined to mean immovable property within the limits of a village other than agricultural land. In respect of both these categories of property mentioned the right of pre -emption is governed by Section 15 of the Preemption Act. Prima facie it may seem that merely because the Plaintiff did not specifically base his claim on the property being village immovable property, the Courts below may not be considered to have committed any such illegality by determining the controversy on that basis as would justify interference by this Court, for, the right to both categories of property is governed by the same provision of law. But in this case it has been argued with a certain amount of plausibility that the area or locality in which the site in question is situated is a factory area and, therefore, it can by no reasonable stretch be described to be village immovable (property, and that if this precise plea had been taken it could have been shown that the locality in question could not reasonably be considered to be a part of any village and, therefore, the property sold could not constitute village immovable property for the purpose of the right of pre -emption. In this context it has been argued that the right of pre -emption being a piratical and aggressive right it should not be extended by liberal construction of law but should be strictly confined within clearly specified statutory limit. The contention is not wholly without substance and requires to be kept in view when considering the merits of the controversy.