PYARE LAL Vs. KAMLA RANI

JUDGEMENT

(1.) This regular second appeal has been filed by the defendants against the judgment and decree of the Senior Subordinate Judge, Gurgaon, dated October 16, 1965.

(2.) The case of the plaintiff was that Parma Nand, father of the plaintiff, was the owner of the property in dispute and he sold it by a registered sale deed dated June 14, 1963, in favour of the defendants for an amount of Rs. 1,500/-. The plaintiff claimed that she being the daughter of the vendor, had a superior right of pre-emption against the defendants. She, therefore, instituted a suit for possession by pre-emption on payment of Rs. 1,500/-. The suit was contested by the defendants, who inter alia, pleaded that the plaintiff was not the daughter of the vendor and that the defendants were tenants on the land in dispute at the time of the sale and thereafter. The trial Court held that the plaintiff was the daughter of the vendor and the defendants were tenants on the land in dispute. In view of the finding that the defendants were tenants it dismissed the suit of the plaintiff. She went up in appeal before the Senior Subordinate Judge who upheld the finding of the trial Court that the plaintiff was the daughter of the vendor. He, however, held that the defendants were not tenants, but had become trespassers on the date of the sale. Consequently he accepted the appeal and decreed the suit of the plaintiff. The defendants have come up in second appeal against the judgement and decree of the first appellate Court.

(3.) The only question for determination in this appeal is, whether the appellants were tenants on the land in dispute on the date of sale. In case they were tenants, the plaintiff's suit is liable to be dismissed under Section 17-A of the Punjab Security of Land Tenures Act. In order to determine this question, a few more facts may be noticed. It is admitted by the plaintiff that one Daulat and Mangal defendant were tenants on the land in dispute under the vendor and his brother, who filed ejectment proceedings against both of them in the revenue Court. An ejectment order was passed against them in those proceedings by the Assistant Collector Ist Grade, Rewari, on February 3, 1961, vide order Exhibit P.3. The Assistant Collector, in view of the fact that Mangal, etc., were in possession of less than five standard acres of land, held that they shall not be actually ejected from the property in dispute unless they were resettled on some equivalent area. Later on the Circle Revenue Officer allotted surplus area to Mangal, etc. vide order Exhibit P.4, dated March 24, 1961. he Assistant Collector, in his order Exhibit P.5, dated July 30, 1962, held that Daulat and Mangal were purposely not taking possession of the land allotted to them. Consequently he ordered that warrant of possession be issued against them. The warrant of possession was issued on August 21, 1962, against both of them. The official concerned reported on the warrant that they were not ready to give up the possession and had raised an objection that the amount of compensation fixed was inadequate. Mangal defendant remained in possession of the property in dispute in the aforesaid circumstances. The sale took place on June 14, 1963. It may further be stated that Piara Lal, Ram Chand and Laiq Ram, defendants, brothers of Mangal, defendant, were shown to be in possession of the land in dispute, in the Khasra Girdawari. Litigation started between Parma Nand and his brothers on the one side and Mangal and his brothers on the other, for correction of entries in the Khasra Girdawari. The Collector, in appeal, vide his order dated March, 20, 1962 (copy Exhibit P.8), ordered that Mangal alone be shown as a tenant, in the Khasra Girdawari for 1959-60. Thereafter, again the brothers of Mangal were shown in possession of the land jointly with Mangal, in the Khasra Girdawaris. The learned appellate Court has not relied on the said Khasra Girdawari of 1959-60, they became joint tenants under Parma Nand, etc. In my view, the observations of the first appellate Court are correct and on the basis of subsequent Khasra Girdawaries it cannot be held that brothers of Mangal became tenant after 1959-60 on the land in dispute.