NIRANJAN SINGH Vs. KARAM SINGH AND ORS.

JUDGEMENT

(1.) THIS second appeal is directed against the concurrent decisions of the Courts below dismissing Niranjan Singh's suit for pre -emption.

(2.) THE land in dispute was sold along with a well plus one -fifth share in a tube -well for Rs. 7,000 to Karam Singh and Ganda Singh, Defendants Nos. 1 and 2, by Defendant No. 3, Lehna Singh. Two suits were filed to pre -empt this land, one by Niranjan Singh, the present Appellant, and the other by Joginder Singh. Both claimed right of pre -emption on the ground that they were nephews of the vendor, Lehna Singh. A statement was made by both of the pre -emptors (with which the vendees agreed) that their right of pre -emption was equal and decree be passed in favour of both in equal shares. This statement was of course subject to the rider that they had the right of preemption. That is implicit in the statement. On the 19th of January, 1959, Joginder Singh's suit was decreed, but Niranjan Singh's suit was dismissed on the ground that he had waived his right of pre -emption. Against these decisions two appeals were preferred, one by the vendees -against the vendor, and Joginder Singh and Niranjan Singh (Civil Appeal No. 18 of 1959) and the other by Niranjan Singh against the vendees, the vendor and Joginder Singh (Civil Appeal No. 24 of 1959). Both these appeals were rejected toy the lower appellate Court. The vendees appear to be satisfied with the decision of the lower appellate Court and have not come up in further appeal, whereas Niranjan Singh has come up in second appeal to this Court.

(3.) THE second contention, of the learned Counsel for the Appellant is that there is no waiver, because a tube -well is not land. The Courts below have held that Niranjan Singh has waived, his right because he purchased rights in the tube -well from the vendees and therefore, he recognised the validity of the sale in favour of the vendees and could not pre -empt the same because his act in purchasing the tube -well would amount to waiver of his right of pre -emption. This conclusion is not disputed by the learned Counsel for the Appellant; what is disputed is that the sale of the tube -well is not sale of land and what can be pre -empted is only agricultural land or village immovable property or urban immovable property, In the present case we are not concerned, with the last two categories of property. We are only concerned with land. 'Land' has been defined in Section 3(1) of the Punjab Preemption Act, 1913 (1 of 1913), as meaning "land' as defined in the Punjab Alienation, of Land Act, 1900 (as amended by Act, 1 of 1907)". The definition of 'land' is given in Section 2 of the Punjab Alienation of Lands Act and its relevant part is as follows: