DUNI CHAND Vs. NAGINA SINGH

JUDGEMENT

(1.) This is defendants' second appeal against whom the suit for possession by way of pre-emption was dismissed by the trial Court but was partly decreed in appeal.

(2.) Nanak Chand sold his 1/6th share in the land measuring 129 kanals 18 marlas vide sale deed dated 11.2.1974 for a sum of Rs. 3,000/-. The plaintiff claiming himself to be one of the co-sharers filed a suit for possession by way of pre-emption. The suit was contested, inter alia, on the suit land and, therefore, the sale was not pre-emptible. The defendants also denied that the plaintiff was a co-sharer. The trial Court found that the defendants were tenants in the suit land at the time of sale and that being so the plaintiff does not have superior right of pre-emption in view of section 17-A of the Punjab Security of Land Tenures Act, 1953. In view of that finding the plaintiff's suit was dismissed. In appeal, the learned Additional District Judge came to the conclusion that the vendees could be said to be tenants only on 1/6th share of the land sold which comes to 2 Kanals 14 Marlas. Consequently, he passed the following decree "a decree for possession by pre-emption of land measuring 18 Kanals 19 Marlas as 1/6th share out of Gher Mumkin Darya Burd land measuring 113 Kanals 14 Marlas (ex-cluding 16 Kanals 4 Marlas under the tenancy of the respondents) is passed in favour of the appellant and against the respondents on payment of Rs. 2925/- in all."

(3.) The learned counsel for the vendee-appellants submitted that even on the finding of the lower Appellate Court, the plaintiff's suit was liable to be dismissed in view of the decision of this Court reported in Chander v. Madan Gopal, 1981 PunLJ 310. He submitted that after holding that the defendants were tenants on 2 Kanals 14 Marals of land and that being so the sale qua that land was not pre-emptible in view of the provisions of section 17-A of the Punjab Security of Land Tenures Act, 1953 the defendants have also become co-sharers in the joint Khata and therefore, the plaintiff could not claim the right of pre-emption being co-sharer. According to the learned counsel the vendee-defendants were entitled to improve their status before filling the suit for pre-emption and on the facts and circumstances of the case since the defendants also became co-sharers by virtue of the sale deed in question, the plaintiff could not claim the right of pre-emption being a co-sharer.