NATHU Vs. BALBIR SINGH

JUDGEMENT

(1.) Nathu, Manohar, Teja and Bhopa, the plaintiffs, in Case No. 154 of 1964, in the Court of the Subordinate Judge Ist Class, are the appellants in this second appeal. Smt. Kaushalya Devi sold land measuring 48 Kanals to Balbir Singh, first defendant, under a deed of sale dated 29.11.1963. The plaintiffs sued for possession by pre-emption claiming that they were the tenants of the vendor at the time of the sale. Nathu claimed to be in possession of 8 Kanals of land, Manohar claimed to be in possession of 16 Kanals of land while Teja and Bhopa claimed to be in joint possession of 24 Kanals of land. The learned Subordinate Judge held that Nathu alone was proved to be a tenant and not Manohar, Teja and Bhopa. Therefore, he dismissed the suit of Manohar, Teja and Bhopa and decreed the suit of Nathu. In decreeing the suit, however, he granted a decree for the whole of the 48 Kanals of land instead of confining it to the 8 Kanals of land of which alone Nathu claimed to be the tenant. The defendant Balbir preferred an appeal. The learned Additional District Judge also held that Nathu had proved that he was tenant of the 8 Kanals of land in his possession. He, therefore, confirmed the decree of the trial Judge, but only in respect of the 8 Kanals of land in his possession. The plaintiffs have preferred this appeal claiming that the suit should have been decreed as a whole while the defendant has filed a memorandum of cross-objection to the decree even in respect of the 8 Kanals of land in favour of Nathu.

(2.) The second appeal has to be dismissed straightaway as the lower Courts have concurrently found that Manohar, Teja and Bhopa had failed to establish that they were tenants in possession of the land claimed by them. Even if Nathu is a tenant in possession of 8 Kanals of land, he certainly could not pre-empt the sale of the land of which he was not the tenant.

(3.) In regard to the memorandum of cross-objections, Shri Ram Rang, learned counsel argued that Section 15(2) of the Punjab Pre-emption Act alone applied to the facts of the case and not Section 15(1) and therefore, a tenant had no right to pre-empt at all.