KANSHI RAM Vs. RAWAT SINGH

JUDGEMENT

(1.) Two cross-appeals against the judgment and decree of the lower appellate Court in a pre-emption case have been filed under Section 100 of the Code of Civil Procedure under the following circumstances :-

(2.) The question whether the vendees were in possession of any part or whole of the land in dispute as tenants or not has been decided on the basis of entries in the revenue records. Even though the vendees are described to be tenants-at-will (muzaras ghair maurusi) of a major portion of the land in dispute, they have been denied the protection afforded to them by Section 17A of the Punjab Security of Land Tenures Act on the basis of entries in the column of rent. It was nobody's case that these vendees were setting up any adverse possession or hostile title. The vendees were not claiming any better rights than those of tenants and they had actually paid a substantial amount to the owner in acknowledgment of his superior title or right of ownership in the land. The simple fact that the column of rent does not mention any lagan or rent would not imply that we can force on these persons who have been described as muzaras ghair maurusi the superior title or the ownership rights that they had never claimed. The expression "muzaras ghair maurusi" has to be given its ordinary meaning unless the entries in the column of rent were found to be inconsistent with the meaning to be assigned to the entries in the column of occupation. All the rulings cited before me by the counsel for the plaintiff-pre-emptor are on altogether different facts. In Maman Singh V. The Resident Magistrate, Gohana and others,1965 PunLR 161, Rulhu Ram V. Than Singh and others., 1966 68 PunLR 866, and Annamalai Goundan V. Venkatasami Naidu and others, 1959 AIR(Mad) 354 the person who was in possession and who was described as a tenant-at-will in the column of cultivation was claiming better rights and could show entries in the column of rent in support of his plea of prescriptive title or better rights in the land. The entries in the column of rent in our case do not suggest that the person in possession was anything over and above a tenant-at-will as described in the column of cultivation and the person in possession does not claim any rights which could be described as hostile to the true owner. The words 'muzaras' or 'ghair maurusi' or 'tenant-at-will' in the column of cultivation have, therefore, to be given their ordinary meaning and there is nothing in the entries in the column of rent to suggest that this description of the person in possession was incorrect. In fact, the person in possession does not claim to have any better rights than that of a tenant-at-will. The Courts are not entitled to make out a case for the parties which had not at all been pleaded by them. It was nobody's case that the vendees were in possession of the land as mere licensees. Even a licensee has to pay some fee for the enjoyment of the rights conferred on him under the licence. The controversial paragraph 4A of the replication would reveal its true significance if it is read in this context. If the persons in possession had stopped paying any rent for the use and enjoyment of the land after the agreement of sale, it was apparently because the landlord was enjoying the usufruct and interest of a substantial amount paid as price of the land in anticipation of the sale which was to take place a few months later. The interest on the sale price paid in advance was apparently adjusted against the rent. The entries in the girdawaris and jamabandis show that except for an area of 5 kanals 12 marlas comprising of rectangle numbers 1/25 and 7/5, the rest of the land was in possession of the vendees as tenants at the time of the sale. If payment of rent had been stopped with effect from the date of the agreement, it was obviously because the entire sale price had been paid in anticipation of the sale. The vendees were realising the profits or the produce of the land in lieu of the interest on the substantial amount that had been paid in advance as the price of the land. There was, therefore, no question of their paying any rent after they had paid the price but this had not made any difference to their status as tenants over the land. The suit filed by the plaintiff-pre-emptor was, therefore, liable to be dismissed except for an area of 5 kanals 12 marlas comprising of rectangle numbers 1/25 and 7/5.

(3.) Parbhati and Lal Chand had purchased only one-third share in the land sold. The purchasers of the other two-third share had not associated any stranger with themselves and the association of a stranger by Parbhati would not affect their rights in the land or the protection that they enjoy under Section 17A of the Punjab Security of Land Tenures Act. Parbhati had also purchased a specific share in the remaining one-third of the land. The purchase by Parbhati and Lal Chand was on separate basis in the ratio of 9:2 in this one-third share. Even between Parbhati and Lal Chand, there was no association or mixing up of shares of the land respectively purchased by them. Lal Chand may not be having any protection under Section 17 of the Punjab Security of Land Tenures Act in respect of 2/11 of one-third share purchased by him but this protection would clearly be available to Parbhati in respect of 9/11 of one-third share purchased by Parbhati. The Single Bench decision of this Court in Hari Singh V. Damodar and others,1966 PunLR 45, has been over-ruled by a Full Bench decision of this Court in Garib Singh V. Harnam Singh and others, 1971 PunLJ 578.