Punjab-Haryana High Court
(O&M) Kishori vs Ishak on 21 March, 2025
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2025:PHHC:040228
RSA-243-1990 (O&M)
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA-243-1990 (O&M)
Reserved on: 10.03.2025
Date of decision: 21.03.2025
KISHORI (DECEASED) THROUGH LRS.
..Appellant
Versus
ISHAK
..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Rajinder Goel, Advocate
for the appellant.
Mr. Akshay Jindal, Advocate
Mr. Vrishank Suri, Advocate
for respondent.
ANIL KSHETARPAL, J.
1. Brief facts:-
1.1 The plaintiff assails the correctness of concurrent findings of
fact arrived at by the Courts below while dismissing his suit for possession
by way of pre-emption with respect to land measuring 26 kanal and 19 and
½ (half) marla.
1.2 In order to comprehend the issues involved in the present case,
the relevant facts, in brief are required to be noticed.
1.3 Sh. Tej Bhan son of Sh. Daya Ram was owner of agricultural
land comprised in Rectangle No.9, Khasra No.18 (5-19), 23 (8-0), Rectangle
No.13, Khasra No.3(8-0), 8(8-0). He sold the aforesaid land measuring 29
kanal and 19 marlas on 17.02.1984 for Rs.36,000/-. The appellant filed suit
for possession by way of pre-emption claiming to be tenant at the time of
1 of 6
Neutral Citation No:=2025:PHHC:040228
RSA-243-1990 (O&M)
alleged sale on the ground that he has superior right. The plaintiff claimed
that he is exclusively tenant over land comprised in Rectangle No.9, khasra
No.23(8-0), Rectangle No.13, Khasra No.3(8-0), 8(8-0), total measuring 24
kanal, whereas, he is joint tenant to the extent of half share in land
comprised in Rectangle No.9, Khasra No.18(5-19) along with his brother
Sh. Chote Lal. He also claimed that the sale deed has been executed for a
sum of Rs.19,000/- and not Rs.36,000/- as reflected and that he is entitled to
decree for possession on payment of Rs.17,100/- being proportionate price
of 26 kanal and 19 & ½ (half) marla. In the alternative, he also prayed for
pre-emption of entire land.
1.4 The defendants contested the suit on the ground that the suit is
bad for partial pre-emption. It was also claimed that the plaintiff has no right
to pre-empt.
1.5 The plaintiff while filing the replication claimed that his right
extends only to half share, whereas, other half share was in possession of
Sh. Chote Lal, his brother.
1.6 In order to prove the plaintiff produced jamabandi for the year
1981-1982, wherein, Sh. Kishori and Sh. Chote sons of Sh. Paltu were
recorded to be in possession as tenant on payment of 'Batai' at the rate of
half share with respect to land comprised in Rectangle No.9, Khasra
No.18(5-19). He also produced khasra girdawari and other documents. The
plaintiff is required to deposit 1/5th of the pre-emption amount, which is
known as 'Zare-Panjam', hence, he deposited Rs.6,492/-.
1.7 Both the Courts found that the suit filed by the plaintiff was bad
for partial pre-emption and hence dismissed.
2. Arguments addressed:-
2.1 Learned counsel for the appellant contends that in view of the
2 of 6
Neutral Citation No:=2025:PHHC:040228
RSA-243-1990 (O&M)
Division Bench judgment in Kartar Singh Vs. Kirpal Singh, RSA-252 of
1963, decided on 21.05.1965, the tenant is entitled to pre-empt a part of the
sale deed because his right extends to the property, which is in his
possession as tenant. He submits that in 1960, fourth clause in Section 15(1)
of Punjab Pre-emption Act, 1913, was added permitting the tenant to pre-
empt the sale deed to the extent the property was in his possession as tenant.
In the alternative, he submitted that the plaintiff has already prayed for pre-
emption of the entire land.
2.2 Per contra, learned counsel for the respondent has submitted
that Sh. Chote Lal also filed suit with respect to 2 kanal and 19 and ½ (half)
marla, which was dismissed by the trial Court and affirmed in appeal by the
First Appellate Court. Moreover, while relying upon the judgment passed in
Ram Chand Vs. Randhir Singh, (1994) 6 SCC 552 and other connected
judgments, he submits that right of pre-emption extends to entire sale deed
and not restricted to the property under the possession of tenant.
3. Discussion:-
3.1 This Bench has heard the learned counsel for the parties and
with their able assistance perused the paperbook.
3.2 The Division Bench in Kartar Singh's case (supra), has held as
under:-
"So far as the sub-clauses other than fourthly in clause
(a) of sub-section (1) of section 15 of the Act are
concerned, the right of pre-emption is given to certain
persons who are related to the vendor, the idea obviously
being that those intimately connected with the vendor
should be given a preferential right to have the property
sold to them in preference to a complete stranger or a
remoter relation. Prior to the amendment of section 15
by Punjab Act 10 of 1960 the right of pre-emption
extended to all collaterals in order of right of
inheritance. This sort of fetter on the power of alienation
of a vendor has been curtailed by the amending Act, and
now the right of pre-emption is limited only to the
3 of 6
Neutral Citation No:=2025:PHHC:040228
RSA-243-1990 (O&M)
relations mentioned in the first three sub-clauses, who
are comparatively nearer relations of the vendor. For the
first tine a right has been given to a tenant also to pre-
empt. The general agrarian policy followed by the
welfare State is to provide security to the tiller of the soil.
By enactment of the Security of Land Tenures Act, 1953
(Punjab Act 10 of 1953), the circumstances under which
a tenant can be ejected by the land-lord have
considerably been reduced. There is also provision made
whereby on old tenant can, under certain circumstances,
purchase the land under his continuous tenancy even
against the wishes of the landlord. The new provision in
the Pre-emption Act giving a right of pre-emption to a
tenant, i.e. to pre-empt a sale, obviously is a step in the
direction of providing him security. Section 15 only
enumerates the persons in whom the right of pre-emption
vests and does not deal with the question of the extent to
which each of such persons shall have a right. Under
clause (b) of sub-section (1) of this section, where the
sale is of a share out of joint land and is not made by all
the co-sharers jointly, the right vests "in the other co-
sharers." There can be a case where the vendor owns
property in two or three khatas and he has different co-
sharers in these khatas. If 'A' is a cosharer in the first
khata, 'B' a cosharer in the second khata and 'C' a
cosharer in the third khata, then obviously 'A' being only
a cosharer in the first khata can pre-empt the sale to the
extent of that khata and no more. Being a cosharer in a
part of the property sold, he is qualified to pre-empt and
can, therefore, bring a suit for pre-emption of sale, but
he can pre-empt only to the extent of the khata in which
he is a cosharer. It is well established that where there is
a bargain of distinct properties, by a person having
preferential rights only to a portion of such bargain, that
does not give him a right of pre-emption as regards the
other portions simultaneously sold. (See inter alia *P.5.*
in this connection P.R. 87 of 1895, P.R.16 of 1905 and
P.R.112 of 1907). Similarly, if in a sale of a vendor
includes properties in different villages, it will be
fantastic to hold that simply because a tenant holds
under tenancy of the vendor of some property situated in
one village, which forms part of the sale, he would be
either entitled to or is bound to pre-empt the whole sale.
If the law is interpreted in the manner in which the
Courts below have done, the result would be that the very
object of the legislature to benefit the tenants and to give
them security of tenure of the land held by them may be
frustrated. A tenant may be holding tenancy, say over 20
kanals of land, and the vendor sells 100 acres of land,
including the 20 kanals so held by the tenants; according
to this view of the law the tenant would be bound to pre-
empt the entire sale, because otherwise he will be non-
4 of 6
Neutral Citation No:=2025:PHHC:040228
RSA-243-1990 (O&M)
suited on account of partial pre-emption. Obviously a
tenant holding tenancy over such a small area would be
incapable of finding finances to pre-empt the whole sale.
Thus if the provision is interpreted in that manner, it nay
not necessarily, in all cases, work for the benefit of the
tenant. Furthermore there may be 100 tenants over this
area of 100 acres sold by the vendor. If everyone of the
tenants is entitled to pre-empt only the land held by him,
the matter will be quite simple. But to hold that everyone
of these tenants must necessarily pre-empt the whole sale
is likely to lead to fantastic results. In support of his
contention the learned counsel for the respondent
referred to Jangli and others v. Lakhmi Chand and
others (Regular Second Appeal No. 1615 of 1960 decided
by Gurdev Singh, J., on the 20th of March 1962). That
was a case where sons of two out of three vendors filed a
suit for pre-emption and the question for consideration
was whether those two plaintiffs had a right to pre-empt
the entire sale or only the share of their respective
fathers, the third vendor being their fathers' uncle. The
learned Judge felt that they would be entitled to pre-empt
the entire sale, because otherwise it would lead to absurd
results. As I have indicated above, the right of pre-
emption on the ground of relationship stands on quite a
different footing from the right of pre-emption on the
ground of holding a share in the property or holding
tenancy over a part of it. In one case the relationship
extends with regard to the entire property and in the
other case the matter which clothes with a superior right
is only qua a certain part of the property. This decision,
therefore, has no bearing on the point before or.
Taking into consideration the objection that was
apparently in view of the legislature, viz., to afford
security of tenancy to the tenants, and in view of the fact
that it is well recognised that a person as of right can
exercise his right of pre-emption only over that part of
the property qua which he has a superior right of pre-
emption, I have no hesitation in holding that the only
property interpretation of the clause in question is that
although a tenant becomes qualified to bring a suit for
pre-emption as soon as he can establish that he holds
rights of tenancy over any portion of the land which
forms part of the sale, his right to pre-empt extends only
to the extent of the property over which he has the
tenancy rights."
3.3 On careful perusal of the judgment passed in Ram Chand's
case (supra), it is evident that in para 1, the Supreme Court culled out the
questions which required answer. For the purpose of this Court, question
5 of 6
Neutral Citation No:=2025:PHHC:040228
RSA-243-1990 (O&M)
No.(ii) is relevant, which is extracted as under:-
"(ii) Whether an agricultural tenant holding under
tenancy of the vendor a part of the sold land is entitled to
pre-empt the entire sale?"
3.4 The Supreme Court held that the tenant is entitled to decree of
pre-emption with respect to entire sale deed even if he is tenant over a part
thereof. It may be noted here that the Supreme Court did not declare that if
pre-emption is sought by the tenant only with respect to property in
possession of the tenant, the same shall be bad for partial pre-emption.
3.5 However, this issue does not require further deliberation
because the appellant's appeal deserves to be dismissed on another ground.
3.6 A perusal of jamabandi for the year 1981-1982 (Ex.P-1) proves
that plaintiff Sh. Kishori and his brother Sh. Chote were joint tenant over
land comprised in Rectangle No.9, Khasra No.18(5-19). It was a joint
tenancy. There could not be any splitting of tenancy between the brothers.
The plaintiff deposited Rs.6,492/-,which represents 1/5th of the total pre-
emption amount of Rs.32,460/-. He never deposited 1/5th of Rs.36,000/-.
Hence, the plaintiff cannot falls back upon his alternative prayer. Moreover,
the right of pre-emption has been held to be piratical, archaic and weak in
Atam Prakash Vs. State of Haryana, (1986) 2 SCC 249. Though, in this
case, the right of pre-emption on the basis of consanguinity was examined.
4. Decision:-
4.1 Keeping in view the aforesaid discussion, no ground to interfere
is made out.
4.2 Dismissed accordingly.
21st March, 2025 (ANIL KSHETARPAL)
Ayub JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
6 of 6
