HARI SINGH Vs. DAMODAR AND OTHERS

JUDGEMENT

(1.) THIS is a vendee's appeal against the decree for possession by pre -emption granted to a co -sharer of the vendor. The brief facts giving rise to this appeal are as follows: -

(2.) THE learned counsel for the appellant has urged that the sale by Diwana and Chhotu in favour of Hari Singh was not in recognition of any superior right of pre -emption held by him and he does not claim any advantage on that ground. His main contention, however, is that Hari Singh enjoyed a particular status at the time of the sale, namely, of being a tenant. As such, any sale in his favour was protected and was not subject to the right of pre -emption by virtue of the provisions of section 17 -A of the Punjab Security of Land Tenures Act. So far there is no dispute. He also concedes for the sake of argument that by joining with him Diwana and Chhotu in a sale which may be taken to be indivisible, he loses this protection. However, he contended if during the pendency of the suit before a decree is granted to the pre -emptor, Hari Singh is able to remove this defect which was depriving him of the protection granted to him by law, he cannot be taken to have 'improved his status' within the meaning of section 21 -A of the Punjab Pre -emption Act and he can only be said to have removed the defect which had crept in and consequently he was entitled to resist the pre -emptor on the basis that he is the sole vendee. Reliance for this is pieced by the learned counsel on a Full Bench decision reported as Ali Mohammad v. Mohammad Din : A.I.R. 1941 Lah. 444. Mr. Justice Din Mohammad, who delivered the opinion of the Bench, referred to three Division Bench decisions to each one of which he was a party. With regard to one of these, Hayat Bakhsh v. Mansabdar Khan : A.I.R. 1935 Lah. 529 he observed as follows: -

(3.) THE learned counsel for the respondent then urged that section 21 -A of the Punjab Pre -emption Act specifically prohibits any improvement of the status of the vendee during the pendency of the suit. The word 'status' may have a different meaning in different contexts, but I feel that in the context of this case it has the meaning of the 'position occupied by the vendee'. In the present case it must refer to his position as a tenant. No improvement has taken place in the status of the tenant because he was a tenant, to begin with, and he continued to be a tenant thereafter. He has only been able to remove the impediment in his way for claiming the protection given to him as such.