RAM SARAN DASS Vs. HAR KISHAN LAL

JUDGEMENT

(1.) To understand the facts of the case giving rise to this second appeal by Ram Saran Dass plaintiff-pre-emptor, it will be useful to give the following pedigree table :-

(2.) Krishna Devi, Savitri and Harbhagwan, vendors, sold the land in dispute to Harkishan Lal and Hans Raj, vendees full details of which are given in paragraph 1 of the plaint. It was alleged in the plaint that the vendors sold their 3/4th share in the suit land, total area being 76 kanals in favour of Harkishan Lal and Hans Raj, vendees, for Rs. 8000/-, that the plaintiff, being the first cousin of the vendors, had a superior right of pre-emption; and that no notice of the intended sale was even served on the plaintiff. The vendee-defendants Nos. 1 and 2 resisted the suit. They denied the right of the plaintiff to pre-empt the sale as the same was not pre-emptible. They also claimed Rs. 500/- on account of improvements made on the land. Defendants 3 to 5, the vendors, however, did not put in appearance and were given up by the plaintiff. The parties contested on the following issues :-

(3.) Mr. V. M. Jain, learned counsel for the appellant, has urged that the findings of the Courts below are erroneous, that the appellant is entitled to at least Harbhagwan's share, i.e. one-fourth of 76 kanals, and that he has a superior right to pre-empt the whole of his one-fourth share, i.e. 19 kanals. I find merit in this contention. Law is now well-settled that when a vendee associates with himself in the sale a stranger, he cannot resist the claim for pre-emption on the basis of his own qualification or status. Where the sale is in favour of several persons, it is the status of the lowest of the vendees that has to be taken into account in determining whether the pre-emptor has a preferential right. In the instant case only one of the vendees is a tenant on a portion of land and he has associated with himself a stranger who is admittedly not a tenant on any parcel of land. So it is the stranger's status which has to be seen in the present case. Since he is not a tenant on any parcel of land, his co-vendee, who is a tenant on a parcel of land, also loses his status as a tenant. Reference in this connection may be made to Garib Singh v. Harnam Singh and others, 1972 74 PunLR 186, in which it was so held by a Full Bench of this Court. Mr. Gokal Chand Mittal, learned counsel for the respondents, could not show any law or authority taking a contrary view.