BASAWA SINGH Vs. SANTA SINGH AND ANR.

JUDGEMENT

(1.) THIS is an appeal under Clause X of the Letters Patent by Basawa Singh Plaintiff against the judgment and decree of learned Single Judge, whereby he partly allowed the regular second appeal filed by Santa Singh ' Defendant.

(2.) THE brief facts of the case are that Jawala Singh Defendant No. 2 sold land comprised in Khewat Nos. 18, 17/64 and 311 in favour of Santa Singh Defendant No. 1 by means of a registered sale -deed, dated 28th February, 1957 for Rs. 3,500. Basawa Singh Plaintiff filed the present suit for possession of that land by pre -emption on payment of Rs. 1,500 or such other sum as might be found by the Court to be due on the ground, inter alia, that he was a co -sharer in the land in suit and as such he had a superior right of pre -emption. The trial Court dismissed the suit on the finding that the Plaintiff did not have any superior right of. pre -emption. On appeal, the learned District Judge found that the Plaintiff was a co -sharer in Khewat No. 18, measuring 8 Kanals 17 marlas, and as such had a superior right of pre -emption. As regards the sale price, it was found that out of Rs. 3,500, Rs. 3,300 had been paid in cash before the Sub -Registrar. The learned District Judge was not satisfied about the payment of Rs. 200 which was stated to have been paid as earnest money. Rs. 3,300 was also held to be the market value of the land. Decree for possession by pre -emption in respect of the whole of the land on payment of Rs. 3,300 was awarded in favour of the Plaintiff. On second appeal by Santa Singh, Defendant -vendee, the learned Single Judge upheld the finding of the First Appellate Court that the Plaintiff was a co -sharer of the land comprising Khewat No. 18, and as such had a superior right of pre -emption in respect of that land. As the Plaintiff was not the co -sharer of the land comprised in Khewat Nos. 17/64 and 311, his suit in respect of that land was dismissed. Question then arose as to what should be the amount on payment of which the Plaintiff should be granted decree in respect of land comprised in Khewat No. 18, and it was held that he could get the decree on payment of the full amount of Rs. 3,300.

(3.) WE agree with the view expressed above and are of the opinion that it would be highly inequitable that a Plaintiff, who is entitled to a decree of pre -emption in respect of only a part of the property sold, should be made to pay the full price of the entire property Bold. The right of pre -emption is a right of substitution, and if a Plaintiff is found to have a superior right of pre -emption only in respect of a part of the property sold and gets a decree for possession in respect of that part, it would be only to the extent of that part of the property sold that there would be substitution of the Plaintiff in place of the vendee. As substitution would be confined only to a part of the property sold, it seems but fair that the Plaintiff should be made to pay the price which represents that part of the property in respect of which he is substituted. It is no doubt true that a pre -emptor must take the sale as a whole, and in case he is entitled to pre -empt the whole of the property sold he cannot be allowed to pick and choose and pre -empt only a part of the property sold which he finds to be profitable or convenient and to leave the other property, because this would militate against the rule which forbids the partial exercise of the right of pre -emption. On the other hand, it also seems equally true that where a vendee has included in the sale -deed some property in respect of which the Plaintiff has no right of pre -emption and some other in respect of which he has such a right and the Court passes a decree regarding property about which the Plaintiff has a right of pre -emption, it would not be in consonance with principles of justice and equity to burden the Plaintiff with payment of the full sale price including the price for the portion of the property in respect of which his suit is being dismissed.