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ishar Singh Vs. Maluk Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 1748 of 1973
Judge
Reported inAIR1977P& H38
ActsPunjab Security of Land Tenures Act, 1953 - Sections 17B; Transfer of Property Act, 1882 - Sections 54
Appellantishar Singh
RespondentMaluk Singh and ors.
Appellant Advocate J.S. Saini, Adv.
Respondent Advocate Ranbir Singh Chaudhry, Adv.
DispositionAppeal allowed
Cases ReferredGurdial Singh v. Sewa Singh
Excerpt:
.....constitution. - order exhibit d-2 passed by the collector on january 31, 1966, clearly mentions that only symbolical possession had been given to bodhi and that the appellant would continue to remain a tenant. the sale deed was executed in his favour on november 22, 1966. when he in fact enjoyed the status of a tenant......givingrise to this controversy may be stated as under.2. ishar singh appellant was a tenant of virsa singh respondent in respect of 40 kanals and 4 marias of land. this fact is borne from the entries in the khasra girdawaris for the years 1955-59. some time in 1959-60 virsa singh mortgaged this land with the appellant for a sum of rs. 1,200/- and the mutation evidencing this mortgage was sanctioned on january 20, 1960. on july 2, 1964, virsa singh agreed to sell this land to ishar singh appellant for rs. 5,500/- and the agreement was reduced into writing. on the following day, i. e. july 3, 1964, virsa singh entered into another agreement with respondent bodhi to sell this very land in his favour for a sum of rs. 6,000/-. on january 13, 1965, virsa singh executed the sale deed in.....
Judgment:

M.R. Sharma, J.

1. This appeal is directed against the judgment dated November 2, 1973, rendered by the learned District Judge, Kamal. The brief facts givingrise to this controversy may be stated as under.

2. Ishar Singh appellant was a tenant of Virsa Singh respondent in respect of 40 Kanals and 4 Marias of land. This fact is borne from the entries in the Khasra girdawaris for the years 1955-59. Some time in 1959-60 Virsa Singh mortgaged this land with the appellant for a sum of Rs. 1,200/- and the mutation evidencing this mortgage was sanctioned on January 20, 1960. On July 2, 1964, Virsa Singh agreed to sell this land to Ishar Singh appellant for Rs. 5,500/- and the agreement was reduced into writing. On the following day, i. e. July 3, 1964, Virsa Singh entered into another agreement with respondent Bodhi to sell this very land in his favour for a sum of Rs. 6,000/-. On January 13, 1965, Virsa Singh executed the sale deed in favour of Shri Bodhi. The latter applied for redemption of the land which was allowed by the Collector by his order dated May 31, 1965, Exhibit D-8. On January 31, 1966, only symbolical possession was given to Bodhi and it was held by the Collector that the appellant will continue to remain in possession of the land as a tenant. The appellant had filed a suit for specific performance against Virsa Singh and Bodhi claiming a right to purchase the land in dispute for a sum of Rs. 5,500/- only on the ground that Virsa Singh had entered into an agreement with the appellant to sell this land to him on an earlier date. This suit was decreed on May 10, 1966. In execution of the decree, Virsa Singh and Bodhi executed a sale deed in favour of the appellant on November 22, 1966.

3. On November 20, 1967, Maluk Singh son of Virsa Singh filed a suit for possession against the appellant on the ground that he being the son of the vendor had a superior right of pre-emption. This suit was dismissed by the learned trial Court on December 14, 1970. An appeal was taken to the learned District Judge, Karnal, before whom reliance was placed on Gurdial Singh v. Sewa Singh, 1972 Pun LJ 395 = (AIR 1973 Punj 254). In that case it was held that when a suit for specific performance of a contract of sale is decreed, the sale dates back to the date on which the agreement to sell is entered into between the parties and since on that date the appellant was a mortgagee of the property he could not be regarded as a tenant thereof.

4. In this appeal, it has been contended on behalf of the appellant that Gurdial Singh's case (AIR 1973 Punj 254) (supra) relied upon by the learned District Judge has been reversed in Letters Patent Appeal and even otherwise a tenant who acquired mortgagee rights in agricultural land in the then State of Punjab did not lose his status as a tenant. In support of the last mentioned contention reliance has been placed on Section 17-B of the Punjab Security of Land Tenures Act, 1953 (hereinafter called the Act), which reads as under :--

'17-B. Certain mortgagees to be deemed as tenants under the Act,

(1) Where, after the commencement of this Act, land comprising the tenancy of a tenant is mortgaged to him with possession by the land-owner and such land is subsequently redeemed by the land-owner, the tenant shall, notwithstanding such redemption or any other law for the time being in force, be deemed to be the tenant of the land-owner in respect of such land on the same terms and conditions on which it was held by him immediately before the execution of the mortgage as if the mortgage had never been executed-

(2) Where a tenant referred to in Sub-section (1) has been dispossessed by the land-owner in execution of a decree or order of redemption, he shall be entitled to be restored to his tenancy in the prescribed manner on the same terms and conditions on which it was held by him immediately before the execution of the mortgage on an application made by him to an Assistant Collector of the first grade having jurisdiction within a period of one year from the commencement of the Punjab Security of Land Tenures (Amendment Ordinance) 1958.

(3) An application received under Sub-section (2) shall be disposed of by the Assistant Collector of the first grade in the manner laid down in Sub-section (2) of Section 10.'

5. A plain reading of the section shows that the Legislature came to the aid of the tenants of land who were being dispossessed of the same by the landlords by adopting circuitous methods. In the absence of this section a tenant who purchased land or acquired mortgagee rights in respect of any land lost his status as a tenant because nobody could be a tenant under himself. Clever landlords mortgaged their lands with the tenants and then dispossessed them of the land after getting decrees for redemption. This situation was met by the Legislature by enacting Section 17-B of the Act which ensures continuity of the status of a tenant enen if he becomes a mortgagee of the land forming part of his tenancy for a short time. This is the plain purport of the section and even if there was some scope for improvement in the phraseology used, I would interpret it in this manner because it advances the object of the Legislature. I would accordingly hold that the appellant continued to remain a tenant for purposes of the Punjab Pre-emption Act even though he had acquired the rights of a mortgagee over this property in 1960. Under Section 17-A of the Act a sale of land comprising the tenancy of a tenant made to him by the land-owner is not preemptible under the Punjab Pre-emption Act, Maluk Singh respondent can be non-suited on this short ground alone.

6. However, in this case there are additional grounds to come to the same conclusion. Order Exhibit D-2 passed by the Collector on January 31, 1966, clearly mentions that only symbolical possession had been given to Bodhi and that the appellant would continue to remain a tenant. The sale deed was executed in his favour on November 22, 1966. when he in fact enjoyed the status of a tenant.

7. Last of all, it might be observed that in Gurdial Singh v. Sewa Singh, 1973 Rev LR 54 = (AIR 1974 Punj 18) (Letters Patent Appeal), a Division Bench of this Court has reversed the view taken by the learned Single Bench in Gurdial Singh v. Sewa Singh, 1972 Pun LJ 395 = (AIR 1973 Punj 254). It was held that a sale crystallises in favour of a party to an agreement to sell on the date when a decree for specific performance is passed in |his favour. In this view of the matter, the very basts on which the learned District Judge allowed the appeal of the respondent had been rendered wholly insecure.

8. For. the reasons mentioned above, I allow this appeal and dismiss the suit for pre-emption filed by the respondent. The appellant shall also have his costs throughout.


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