SHADI LAL Vs. SURINDER KUMAR

JUDGEMENT

(1.) THIS is second appeal by Shadi Lal. It is directed against the judgment of Shri ram Lal Aggarwal, District Judge, Jullundur dated December 22, 1961 upholding the judgment of Shri Gian Chand Jain, Sub Judge 1st Class Jullundur, dated january 30, 1961. dismissing the suit for pre-emption filed by the appellant.

(2.) HALF share in House No. 226 situate in Neel Mohalla in the town of Jullundur was sold by Sansar Chand respondent No. 1 in favour of Surinder Kumar respondent no. 2 on December 5, 1958. The appellant pre-empted that sale by filing suit for possession by pre-emption on February 29, 1960, inter alia, on the ground that he was a tenant of the house and had a right of pre-emption. In the written statement filed on behalf of Surinder Kumar vendee, the vendee denied that the appellant was a tenant and further pleaded that the property being urban immovable situate in the town of Jullundur. Proof of existence of custom for preemption was a condition precedent for exercise of right of pre-emption. The trial court framed several issues. Under one of the issues it was held that the pre-emptor was a tenant. The findings of the trial Court on that issue and on others were not contested before the lower appellate Court. The only point, which was argued before the lower appellate Court was that Section 7 of the Punjab Preemption act, 1913 (hereinafter called the Act), making it obligatory for a pre-emptor to prove the existence of custom, did not override Section 16 of that Act and consequently on proof of his status of being a tenant of the property in dispute, the trial Court should have granted a decree for pre-emption in his favour. The lower appellate Court did not agree with that contention. In the result, the appeal was dismissed. Hence the present second appeal.

(3.) SHRI N. K. Sodhi, appearing on behalf of the appellant has contended that a pre-emptor is entitled to pre-empt, if he establishes his right of pre-emption under section 16 of the Act independent of the provision of Section 7 of the Act. In the alternative he also submitted that there is a judicial precedent about the existence of custom in general in the town of Jullundur and consequently his suit should be decreed.