KARTAR SINGH Vs. GHUKAR SINGH AND. ORS.

JUDGEMENT

(1.) THIS second appeal arises out of a suit brought by the Appellant Kartar Singh for possession by preemption of 167 kanals 18 marlas of land situate in village Singhewala, which was sold by Shrimati Sham Kaur on 20th September, 1961, by means of a registered sale deed for Rs. 28,000 to the Respondents Ghukar Singh and others. He claims superior right of pre -emption on the ground that he was the son of the vendor's husband's brother and was a tenant -at -will of this land. Besides denying these allegations, the vendees resisted the suit inter alia on the plea that the Plaintiff -Appellant being a big landowner was debarred from acquiring more land under Section 19A of the Punjab Security of Land Tenures Act, and the sale was not pre -emptible as the vendees were themselves the tenants of tie. land in dispute at the time of the sale, though the learned trial Judge found that the Appellant owned 116 standard acres of land, and was thus a big land -owner, he held that Section 19A of the Punjab Security of. Land Tenures Act did not debar him from exercising his fight of, pre -emption, and the, sale was pre -emptible as there was no satisfactory evidence to prove that the vendees were the tenants of the land in dispute, on the date of the sale. Accordingly, a decree for possession by pre -emption was granted to the Appellant on payment of Rs. 23,540 on 21st October, 1963. This decree has, however, been reversed by the learned District Judge Ferozepur, on an appeal filed by the vendees. The learned judge, while, affirming the findings of the trial Court that the Plaintiff -Appellant Kartar Singh was in possession of more than the permissible area at the time of Sale arid thereafter and was thus a big land -owner, has held that no decree could be passed in his favour in view of the provisions of Section 19A and Section 23 of the Punjab Security of Land Tenures Act. It is against this Appellant decree, dated 30th April, 1964, that the Plaintiff has come up to this Court.

(2.) IT is not disputed before us, as found by both the Courts below that the Plaintiff -Appellant Kartar Singh was a big land -owner and holding more than the permissible area, as defined in Section 19A of the Punjab Security of Land Tenures Act, on the date of the sale, and he continues to be a big land -owner. It is also not disputed that he has a preferential right of pre -emption being the brother's son of the vendor's husband. The only question for consideration before us is whether in view of the provision of Section 19A of the Punjab Security of Land Tenures Act placing restrictions on acquisition of land, he could be granted a decree for possession by pre -emption. Section 19 -A of the Punjab Security of Land Tenures Act reads thus:

(3.) SHRI G.R. Majithia, appearing for the Appellant, has contended that the learned District Judge had wrongly interpreted the provisions of Punjab Security of Land Tenures Act and the bar to further acquisition imposed by Section 19A of the Act does not extend to acquisitions by pre -emption. In this connection, he has cited two Division Bench authorities of this Court reported as Bhupinder Singh v. Shrimati Surinder Kaur and Anr., I.L.R. (1965) 2 P&H 513 :, 1965 P.L.R. 735 and Mangla and Ors. v. Sukhminder Singh and Ors., 1965 Cri. L.J. (P&H) 519, wherein it has been laid down that the grant of a pre -emption decree does not violate, nor has the effect of violating, the provisions contained in Section 19A of the Punjab Security of Land Tenures Act and the question of violation of this provision can properly be decided only when the pre -emptor seeks to take possession of the suit -land through execution.