RAM PHUL Vs. KABUL SINGH

JUDGEMENT

(1.) Ghansham Dass exchanged the land in dispute with Ram Phul on 19th September, 1967. Kabul and his brother Hari Ram challenged this transaction through a suit for pre-emption on the ground that the transaction was in fact one of sale and it was pleaded that the plaintiffs who were tenants on the suit land had the right to pre-empt on payment of Rs. 1,000. The suit was contested by Ram Phul vendee who denied the allegations that the transaction was one of sale. On the pleadings of the parties, the learned trial Court framed the following issues :-

(2.) The facts necessary for the decision of this issue are not in dispute. Kabul plaintiff was a tenant on the land in dispute, but on the application of Ram Phul under Section 9 of the Punjab Security of Land Tenures Act an order for his eviction was passed on 31st December, 1968, copy of which is Exhibit D6. In view of this order, having regard to the ratio of the decision of the Supreme Court in Bhagwan Das and others v. Chet Ram, 1970 PunLJ 780, it was canvassed before me that Kabul's tenancy had come to an end as he had lost the status of tenant by the order of eviction passed before the date of decree.

(3.) It is not in dispute that a pre-emptor, in order to succeed, must have a right to pre-empt not only at the time of sale but also at the institution of the suit and the passing of the decree by the trial Court. The only question to be determined is whether the tenancy of Kabul was determined and he lost his status of tenant by virtue of Exhibit D6 or he held the land in his capacity as tenant till the date of the decree, The application for the eviction of Kabul was made under Section 9(1)(i) of the Punjab Security of Land Tenures Act, 1953 (hereinafter called the Act), on the ground that Kabul was a tenant of a small land-owner. Under Section 9-A of the Act no tenant liable to ejectment under clause (i) of sub-section (1) of Section 9 could be dispossessed of his tenancy unless he is accommodated on a surplus area in accordance with the provisions of Section 10-A or otherwise on some other land by the State Government. In view of this provision, the Assistant Collector First Grade, Jhajjar, passed the order of ejectment in the following terms :-