SAIN DASS Vs. SARDARI LAL

JUDGEMENT

(1.) THIS second appeal is directed against the decision of the Senior Subordinate Judge reversing on appeal the decision of the trial court dismissing the plaintiff's suit.

(2.) THE land in dispute was sold by Kashmiri Lal in favour of the defendants Sain Dass and Sawan Mal for a sum of Rs. 900/ -. The sale-deed was registered on 18th July, 1959. Sardari Lal Son of Bashambar Dass brought the present suit for pre-emption on the ground that he had a superior right of pre-emption as against the defendants. The defendants took the stand that the suit was for partial pre-emption and that they were the tenants of the vendor in respect of the land sold and, therefore, the suit was not maintainable. This plea was taken in view of the provisions of Section 17-A of the Punjab Security of Land Tenures Act (10 of 1953 ). The trial court held that the plaintiff had a superior right of pre-emption and that the suit was not for partial pre-emption, but dismissed the suit on the ground that one of the vendees was a tenant. On appeal by the pre-emptor, the lower appellate court, relying upon the principle that the tenant had joined a stranger with himself and was thus relegated to the position of a stranger could not get the benefit of Section 17-A reversed the decision of the trial Court and declared the plaintiff's suit. It was held by the lower appellate Court that the sale was indivisible. Against this decision, the present second appeal has been preferred by Sain Dass who has been found to be a tenant by the two courts below, which finding is immune from attack in second appeal.

(3.) THE contention of the learned counsel for Sain Dass is that he is entitled to defeat the plaintiff's suit qua half of the land in dispute, in view of the provisions of Section 17-A of the Act. The learned counsel for the respondent-pre-emptor however, contents that the sale being indivisible, the suit cannot fail as Section 17-A is subject to a rider that the sale to a tenant along with others is a divisible sale and not an indivisible sale. In other words, the argument is that if the shares o the vendees are specified, the pre-emption suit will fail with regard to the share of the tenant in the land sold of which he is a tenant.