SANTA SINGH Vs. HAZARA SINGH AND OTHERS

JUDGEMENT

(1.) This second appeal is directed against the concurrent decisions of the Courts below decreeing the plaintiff's suit for pre -emption. The plaintiff claimed pre -emption on ground of his relationship with the vendors and on the ground of co -share ship. In order to appreciate the various contentions that arise in this appeal, it will be proper to set out a short pedigree -table :

(2.) MEASURING 49 kanals and 12 marlas in Khatauni No. 318, 319, Khewat No. 131. It was held by the trial Court that Hazara Singh could not claim pre -emption on the ground of relationship but he being a co -sharer with the vendee in the land sold was entitled to a decree for pre -emption. Accordingly the plaintiff's suit was decreed. The appeal against this decision by the vendee also failed. It is against this decision that the present second appeal has been preferred.

(3.) MR . Narinder Singh then raised a contention which had not been advanced in either of the Courts below. The contention is that the sale in the present case was by three females and one male. With regard to the sale by the females the right of pre -emption can only be exercised by persons referred to in section 15 (2) of the Punjab Pre -emption Act and not by those mentioned in Section 15(1). It is conceded by him that so far as the sale of the share of the son is concerned that would be preemptible . According to him a decree for pre -emption can only be passed with regard to one -fourth of the land sold on payment of proportionate price of this share. As regards the three -fourths of land sold no pre -emption decree could be passed. The scheme of section 15 of the Act is that it vests a right of pre -emption with regard to agricultural land and village immoveable property on certain specified persons and that too with reference to the sale by a particular type of person. The first type of person is a sole owner. We are not concerned in this case with a sale effected by a sole owner. The second type of person is a co -sharer and the sale is of land by him out of the joint holding. The third type of person is the co -sharer and the sale of land jointly held by them. The trial Court was merely concerned with the sale by a second type of person and it is on that basis that the trial Court decreed the suit and that decree was upheld in appeal.