MANGLA Vs. SUKHMINDER SINGH

JUDGEMENT

(1.) On the 12th August, 1959 Joginder Singh sold 180 Kanals 17 Marlas of agricultural land to Mangla and others for Rs. 16,000/-. A suit to pre-empt the sale was filed by Sukhminder Singh, a brother of Joginder Singh, on the 30th September, 1960. The main plea raised in defence was that Sukhminder Singh will come to own more than 30 standard acres of land if he is allowed a decree for possession of the suit land and that would be a violation of Section 19-A of the Punjab Security of Land Tenures Act. The Court was apparently satisfied that the pre-emptor would be owning more than 30 standard acres of land as a result of the pre-emption decree but did not accept the suggestion that this would be a violation of the Punjab Security of Land Tenures Act; and the Court, therefore, granted the plaintiff a decree for possession of the suit land on payment of Rs. 16,000/- by a certain date failing which, of course, the suit was ordered to be dismissed. The vendees appealed and the learned District Judge held on the evidence that in fact the pre-emptor would not even as a result of the decree be owning more than 30 standard acres of land. He, however, proceeded on the assumption that he might be then holding land more than the permissible area and that held as a matter of law that this would not violate the provisions of the Punjab Security of Land Tenures Act and in the result he dismissed the appeal leaving the parties to their own costs. The vendees then brought a second appeal to this Court. The decree in favour of the plaintiff had been made on the 10th August, 1961, and the vendees appeal had been dismissed by the learned District Judge on the 29th December, 1961. The second appeal in this Court was filed on the l2th February, 1962. In the meantime, that is, after the learned District Judge's decree, the State Government had issued a notification under Section 8(2) of the Punjab Pre-emption Act abolishing the right of pre-emption, in the case of "sale of land made in favour of a Harijan". The notification was issued on the 2nd/3rd February, 1962. On the 21 st December, 1962, however, that notification was amended and as a result of the amendment the right of pre-emption was taken away only in respect of a sale of agricultural land in favour of a Harijan provided it was made after the 31st March, 1961. The sale in the present case was of course made long before then and the notification, as it stood, therefor at the time of the hearing of the second appeal, was of no assistance to the vendees. In the circumstances, a question of law was briefly sought to be raised before the learned Single Judge but was not seriously pressed. The suggestion was that because of the earlier notification of the 2nd/3rd February, 1962 the right of pre-emption in respect of a sale made in favour of a Harijan had been taken away and as the vendees in the present case were Harijans, the sale made in their favour was not pre-emptible with effect from the 2nd/3rd February, 1962 and the subsequent amendment of the notification made on the 21st December, 1962 ought not to affect the matter. As I have said the argument was not seriously pressed and the learned Single Judge, therefore, did not consider it at any great length. The only question argued before the learned Single Judge was on the ground of Section 19-A of the Punjab Security of Land Tenures Act. The learned Judge formed the opinion that the pre-emption decree in the present case did not violate the terms of the Punjab Security of Land Tenures Act. He concluded this from the circumstances that the Punjab Security of Land Tenures Act did not purport to amend or modify the Punjab Pre-emption Act and that the only effect of Section 19-A was that a person, who happens to acquire more than the permissible area of land, will not be allowed to do so and such acquisition will be null and void; but that it was not for that reason necessary that a pre-emption decree should not be granted to a person who had otherwise established a right of pre-emption. On this the learned Single Judge dismissed the appeal of the vendees leaving the parties to their own costs. The present is an appeal under clause 10 of the Letters Patent against the order of the learned Single Judge and is brought on behalf of the vendees.

(2.) Mr. Aggarwal has before us sought to raise the question of the notification dated the 2nd/3rd February, 1962, and its amendment on the 21st December, 1962. There is really no substance in the argument which he advances and for that reason apparently the argument was not seriously pressed before the learned Single Judge. Mr. Aggarwal's suggestion is that the right of pre-emption should subsist not only when the suit is brought but throughout the litigation and should be subsisting at the time the litigation is finally decided. There is no serious objection to this view but what has to be seen is whether the pre-emptor had a right of pre-emption when he filed his suit and whether that position was maintained at the time the decree was granted to him or at the time the question of the validity of the decree came to be considered. In the present case it appears that the pre-emptor clearly had a right of pre-emption when he brought this suit and also when he obtained the decree not only in the first Court but also in the Court of appeal and similarly he had a right of pre-emption at the time the second appeal was considered in this Court. He has also a right at present. The argument of Mr. Aggarwal is simply this that between February, 1962 and 21st December, 1962 this right was taken away through Government's notification under Section 8(2) of the Punjab Pre-emption Act, but this suggestion ignores the fact that the notification was shortly afterwards amended, so that the previous notification ceased to have any effect and under the amended notification the pre-emption right still existed. The amendment or modification of the previous notification thus revived the right of pre-emption, and it is impossible to accept the suggestion that because of the earlier notification of the 2nd/3rd February, 1962 the right of a pre-emptor for the sale of agricultural land in favour of a Harijan was permanently destroyed for all time. There is, therefore, no substance in my opinion in Mr. Aggarwal's submission in this connection.

(3.) There remains the question of the effect of Section 19-A of the Punjab Security of Land Tenures Act. We have considered this question in Bhupinder Singh v. Surrinder Kaur (Second Appeal from Order 45 of 1963) and formed the opinion that a pre-emption decree as such has not in law the effect of making the pre-emptor owner of any land immediately. Ownership passes only after the terms of the decree are complied with. It is, therefore, not right to say that by the granting of a pre-emption decree the pre-emptor becomes the owner of the land he is seeking to pre-empt. The decree is merely contingent and comes into force when the pre-emption amount is deposited in Court and certainly not before this, so that there is no way of finding out at the time of the decree whether the pre-emptor will ultimately become the owner of the land in question or not. To say, therefore, that the pre-emption decree in the present case will make the plaintiff pre-emptor the owner of more than permissible -area of land, seems to us entirely wrong and an anticipation unwarranted by law. Mr. Aggarwal does suggest that a pre-emption decree should be taken to vest the property in the pre-emptor but this has not been the view of the Courts and the Supreme Court decision in Bishan Singh v. Khazan Singh, 1958 AIR(SC) 838makes it quite clear that a pre-emptor does not become the owner of the land and is not substituted for the owner till the terms of the decree are complied with. The Supreme Court has in this connection approved the rule laid down by the Privy Council in Deonandan v. Ramdhari, 1916 AIR(PC) 179expressing the same view, namely, that the actual substitution takes place when possession is taken under the decree. Nothing happens at the date of the decree and the question, whether any violation of Section 19-A of the Punjab Security of Land Tenures Act has or has not taken place, cannot be determined at the time of the granting of a pre-emption decree and that question has to be deferred, in our opinion, to the time of the execution of the decree, for only then it can be found out whether the decree holder seeks to acquire more than the area permitted by Section 19-A of the Punjab Security of Land Tenures Act. On this view of the matter it is not possible for us to disturb the conclusion reached by the learned Single Judge that the pre-emption decree in this case is violative of any provision of the Punjab Security of Land Tenures Act. We, therefore, see no reason to interfere with the judgment of the learned Single Judge and dismiss this appeal again, however, leaving the parties to their own costs.