MALHU AND OTHERS Vs. SHAM LAL AND OTHERS

JUDGEMENT

(1.) THIS second appeal arises from a decree for possession by pre -emption of certain land made by the Subordinate Judge First Class, Palwal, in favour of the plaintiff -respondents on the 23rd May, 1961, and confirmed on appeal by the Additional District judge, Gurgaon, on the 9th March, 1962.

(2.) THE appellants are Malhu, Budhi and Jaishi, who were defendants Nos. 8 to 10 in the suit. The original vendor was Nathi (defendant No. 7), who jointly owned half share of agricultural land in village Khajuka, Tehsil Palwal, which he sold for Rs. 10,000/ - in favour of Charan Singh etc. (defendants Nos. 1 to 6) on the 9th June, 1959. The document (Exhibit D. 1) was registered on the 19th September, 1959. On the 29th June, 1960, the plaintiffs Sham Lal etc. instituted the suit for pre -emption claiming a superior right of pre -emption on account of their being co -sharers in the land in suit and additionally on the ground on their being the sons of the vendor's brother. It is an admitted fact that on the 10th August, 1960, defendants Nos. 1 to 6 sold this land to the present appellants, that is, defendants Nos. 8 to 10. It is also not disputed that these defendants (defendants Nos. 8 to 10) were tenants of the land under Nathi, the original vendor. Again it is not disputed that on the 7th September, 1960 the defendants Nos. 8 to 10 purchased some land from Jawala Parshad, who was a co -sharer along with Nathi in the joint holding and thereby they also became co -sharers in it.

(3.) THE Punjab Pre -emption Act, 1913 (Act No. I of 1913), was extensively amended by the Punjab Preemption (Amendment) Act, 1960 (Act No. 10 of 1960), which came into force on the 4th February, 1960. At the time when this suit was filed the principal Act was in force. Under the original Act, so far as tenants were concerned, the right of pre -emption was recognised only in a tenant having a right of occupancy either in the land sold or in any agricultural land in the estate within the limits of which the land or property is situated. It is not disputed that defendants Nos. 8 to 10 as tenants would have no right of pre -emption under section 15 of the Act as it originally stood. However, such a right has been given in the amended provisions. The sale being of a share out of joint land and not having been made by all the co -sharers jointly, it will be clause (b) of sub -section (1) of section 15 (as amended) which would be applicable In this clause, the fifth item is that of tenants who bold under tenancy of the vendor or vendors the land or property sold or a part thereof, and they come after the co -sharers in the joint holding. In the capacity of tenants the right of pre -emption of defendants Nos. 8 to 10 comes after that of the plaintiffs.