SWARAN KAUR Vs. GURNAM SINGH

JUDGEMENT

(1.) This is vendee-defendant's second appeal against whom the suit for pre-emption has been decreed by both the Courts below.

(2.) The plaintiff-respondents filed the suit for possession by way of pre-emption of the allegations that the land measuring 102 Kanals 19 Marlas was purchased by the defendant-appellant from defendant No. 2, Jagir Singh, for a sum of Rs. 24,000/- with all rights appurtenant thereto vide sale-deed dated June 12, 1969, registered on June 26, 1969. The plaintiffs claimed the superior right of pre-emption being the sons of defendant No. 2. The suit was contested inter alia on the ground that defendant No. 2 never sold the suit land to the appellant as the same belonged to one Balwant Singh who had entered into an agreement to sell the land in favour of the appellant vide agreement to sell dated November 7, 1966 and that the sale-deed in pursuance thereof was to be executed on or before December 15, 1967. The said Balwant SIngh sold the suit land to defendant No. 2 on December 27, 1966 upon which the appellant filed a suit against him and defendant No. 2, for the specific performance of the agreement. Therein Balwant Singh was proceeded ex parte. Defendant No. 2 was bound by the said agreement to sell, being a subsequent vendee who had full knowledge about the said agreement to sell. During the pendency of the suit, defendant No. 2 had compromised with the appellant and the said suit was decreed by the Court against both the defendants therein. The sale-deed in favour of the appellant was executed by defendant No. 2 in terms of the compromise decree in the previous suit and as such the plaintiffs had no right to pre-empt the suit land. The trial Court found the plaintiffs were the son of defendant No. 2 and thus, they were entitled to pre-empt the sale. The plea of the appellant that the sale was not pre-emptible, as alleged in the written statement, was negatived. Consequently, the plaintiffs' suit was decreed on payment of Rs. 26,652.50. In appeal, the learned Senior Subordinate Judge with enhanced appellant powers affirmed the said findings of the trial Court and, thus maintained the decree passed in favour of the plaintiffs. Dissatisfied with the same, the vendee-defendant Sawaran Kaur has come up in second appeal to this Court.

(3.) The only argument raised on behalf of the appellant is that the sale was not pre-emptible because sale did not include a sale in execution of a decree for money or of an order of a civil, criminal or revenue Court or of a revenue officer, as provided under Section 3(5) of the Punjab Pre-emption Act. According to the learned counsel, the sale had taken place in execution of the Civil Court decree passed on February 26, 1969, in favour of the appellant and, therefore, such a sale was not pre-emptible. Reliance in this behalf was placed on Hamir Singh v. Sunder Singh, 1928 AIR(Lah) 174However, in Balbir Singh v. Kulwant Singh, 1965 AIR(P&H) 346 , it was held that a sale per sale-deed executed by a Commissioner appointed by the Court, in favour of a decree-holder, in execution of a decree to sell, is pre-emptible. The view taken by the learned Single Judge in Balbir Singh's case , was approved by the Division Bench of this Court in Gurdial Singh v. Sewa Singh, 1974 AIR(P&H) 18, herein paragraph 5 of the judgment, it was observed :-