RUR SINGH Vs. RAM MURTI

JUDGEMENT

(1.) This regular second appeal has been filed by the defendants against the judgment and decree of the second Additional District Judge, Hissar, dated July 16, 1966. The plaintiff-respondents have filed cross-objections which have been numbered as 23-C of 1966. The appellants have filed Civil Miscellaneous Application No. 2032 of 1966, for permission to produce and prove registered sale deed dated August 9, 1966, by Kapur Singh and Jangir Singh appellants in favour of Rur Singh appellant, under Order 41 Rule 27 of the Code of Civil Procedure. This judgment will dispose of the regular second appeal, the cross-objections and the civil miscellaneous application.

(2.) Briefly the facts of the case are that Sahi Ram was the owner of land measuring 44 Kanals and 16 Marlas in village Nahranwali, Tehsil Sirsa, District Hissar, and he sold it to Rur Singh, Kapur Singh and Jangir Singh defendant-appellants, vide sale deed dated September 18, 1964, for a consideration of Rs. 6000/-, Ram Murti, Om Parkash and Het Ram, plaintiff-respondents instituted a suit for possession by pre-emption on the ground that they were the grandsons of the vendor. They also challenged the price of the land, but the same is not a matter of controversy in this appeal. The defendants contested the suit, inter alia, on the ground that they were tenants on the land at the time of the sale, under the vendor. The trial Court held that the plaintiffs were the grandsons of the vendor, that Rur Singh defendant No. 1 was in possession of the whole of the property in dispute except Khasra No. 41/24/2 measuring 5 Kanals and 7 Marlas and that 1/3rd share of the land sold to Rur Singh defendant was not subject to pre-emption. Consequently, it decreed the suit of the plaintiffs for possession of 2/3rd share of the property against defendant Nos. 2 and 3 on payment of Rs. 4501.50. The defendants went up in appeal before the first Appellate Court against the judgment and decree of the trial Court and the plaintiffs filed cross-objections. The first Appellate Court dismissed the appeal, but partly accepted the cross-objections and held that the plaintiff-pre-emptors were entitled to the possession of Khasra No. 41/24/2 and 2/3rd share of the remaining land in question on payment of Rs. 5034.50. It consequently modified the decree of the trial Court. The defendants have come up in second appeal against the judgment and decree of the first appellate Court, to this Court, and the plaintiffs have filed cross-objections. I shall first deal with the appeal filed by Rur Singh and others and the Civil Miscellaneous Application No. 2032-C of 1966 filed by them.

(3.) The only contention of the learned counsel for the appellants is that Rur Singh appellant was entitled to retain 1/3rd share of the whole land. He argues that the judgment of the first appellate Court was erroneous to the extent to which the Court accepted the cross-objections of the plaintiff-respondents. I have heard the learned counsel for the parties at a considerable length, but regret my inability to endorse the submission of the learned counsel for the appellants. It is not disputed that Rur Singh appellant was a tenant only on 39 Kanals and 9 Marlas of land out of 44 Kanals and 16 Marlas. As he was not a tenant in the remaining land, that is, 5 Kanals and 7 Marlas, he was not entitled to protection in respect of that land under Section 17-A of the Punjab Security of Land Tenures Act. Rur Singh appellant had purchased 1/3rd share in the total land. Thus out of the land purchased by him, he will be deemed to be tenant in 1/3rd of the land under this tenancy, that is, 39 Kanals and 9 Marlas and he is entitled to the benefit of Section 17-A qua that land only. No protection can be afforded to him regarding 1/3rd share of the land on which he was not a tenant. In the abovesaid view I get support from a Division Bench judgment of this Court in Damodar and others V. Hari Singh and others,1970 PunLR 371. In that case, the facts were analogous to the present case. Mehar Singh, C.J., while speaking for the Court, took the same view. I consequently reject the contention of the learned counsel for the appellants.