SATAR MOHD Vs. SARAF-UD-DIN

JUDGEMENT

(1.) THIS second appeal arises out of a suit for pre -emption instituted by the first respondent against the appellants in March 1957 in the Court of the Sub -Judge at Rajouri. Respondents 2 onwards sold the property in suit to the appellants under a deed dated 5 -1 -57 for Rs. 2000/ -. The vendees were the tenants of the property at the time of the sale. The plaintiff, first respondent, who is an owner in Mahal laid the present action for pre -empting the sale in exercise of the statutory right which section 14 of the Right of Prior Purchase Act conferred on him. While the pre -emption suit was pending, in the trial Court, section 14 of the Bight of Prior Purchase Act was amended by Act XXIII of 1959, conferring a preferential right of pre -emption, on tenants.

(2.) THE plaintiff first respondents learned counsel did not seek to support the decision of the Court of Appeal below on the ground that the amending Act XIII of 1959, had no retrospective operation. On the other hand, the frankly conceded that this ground - on which the lower appellate court relied was not tenable in view of the legal position that a vendee in a pre -emption action is entitled to improve his status till the passing of the decree by the first Court. It is settled law that a pre -emptor must have a subsisting right of pre -emption, on (1) the date of the sale, (2) the date of the institution of the suit, and (3) the date of the decree. If the plaintiff pre -emptor ceases to have the right of pre -emption at any of these points of time, his suit is bound to fail. He can also be non -suited by the vendee acquiring at any time before Ms suit is decreed a right of pre -emption equal or superior to his own. Authorities on this point are legion. See for instance, Madho Singh v. James R. R. Skinner, AIR 1941 Lah 4S3 (FB); Shankar Lal v. Poonamchand, AIR 1954 Raj 231, and Nabir Ganai v. Mohd. Ismail Ganai, AIR 1960 J and K 112. It cannot reasonably be gainsaid that a vendee can improve this status not merely by his own acts after the sale or pending the pre -emption suit, but also by virtue of the operation of law in his favour. A subsequent legislation, therefore, can as much enable a vendee to improve his status as any voluntary act on his part. AH this has been conceded by the learned counsel for the plaintiff -pre -emptor. This means that the only ground on which the lower appellate Court gave judgment for plaintiff is plainly unsupportable.

(3.) BUT the learned counsel for the pre -emptor strenuously urged that the appellants -vendees ceased to be tenants the moment they purchased the property leased to them from the landlord, if the vendees ceased to be tenants from the date of the sale they could not obviously invoke the benefit of the amending Act XIII of 1959 which conferred a superior right of preemption on a tenant vis -a -vis an owner In Mahal like the plaintiff -respondent. The point to be examined therefore is whether the tenancy of the appellants was extinguished on their purchasing the vendor -landlords right under the sale -deed of 5th January, 1957. The first respondent -pre -emptors claim that the tenancy rights of the vendees became extinguished is based entirely on the doctrine of merger. The learned counsel for the vendees -appellants has sought to meet this contention by pointing out that in a case like the present there could be no merger of the interests of the landlord and the tenant and a consequent extinguishment of the tenancy.