1. This order will dispose of R.S.As Nos. 560 and 561 of 1969. There is no merit in either of these appeals and both must fail. As the points of law and some facts are common to both these appeals, I have thought it proper to decide both of them by common judgment.
2. An area of land measuring 110 Kanals and 10 Marlas was taken on lease by Sobha Singh, Basant Singh and Santa Singh. The lease was for a period of 99 years and is described as a Patta for that period. It commenced in Kharif 1962 and was to end in Rabi 2062. It was for a fixed consideration amounting to Rs. 3,000/-.Sobha Singh died and on his death his share was inherited by his two sons and his widow, that is, Santa Singh, Basant Singh and Mst. Jind Kaur in equal shares. On June 8, 1966, Basant Singh sold his share which is equal to 4/9th share of the land detailed in Paragraph 1 of the plaint with ancillary rights in tube well etc., to Bawa Singh and others, defendants Nos. 2 to 6 for a sum of Rs. 6,000/-.
3. On the 16th of June, 1966, Mst. Jind Kaur solder her 1/9th Share of the agricultural land detailed in paragraph 1 of the plaint in suits Nos. 148/787 of 1966 to defendants Nos. 2 to 5 for Rs. 1,500/-. Santa Singh being a co-sharer in the lease hold rights acquired by his father and brother brought the two suits to pre-empt these two sales on the ground that the land in dispute had been sold and he being a co-sharer in Khata was entitled to pre-empt the same under Section 15(1) of the Punjab Pre-emption Act. These suits were resisted by the vendees act on the pleadings of the parties, the following issues were framed:--
(1) Whether the plaintiff has a superior right of pre-emption?
(2) Whether the plaintiff has waived his right?
(3) Whether the suit for pre-emption lies?
(4) Whether the vendees are entitled for stamp and registration. If so, how much?
4. The trial court decreed the suits on the findings that the plaintiff had a superior right of pre-emption, that he had not waived his right and that the suit for pre-emption lay and that the vendees were entitled to stamp and registration expenses. The vendees preferred two separate appeals and both these appeals have been allowed by the lower appellate Court. The short ground on which the appeals have been allowed is that the sale which is sought to be pre-empted is sale of lease-hold rights and not of sale of ownership rights. The result was that the suits for pre-emption have failed. The pre-emptor has filed the present two appeals.
5. Mr. Lakhanpal, learned counsel for the pre-emptor has raised a brand new plea which is nowhere raised either in the pleadings or in the trial court or in the lower appellate court. The plea is this that the lease hold rights acquired in the year 1962 were in fact not lease-hold rights but the transaction was given the guise of a lease, and in fact the land measuring 110 kanals and 10 Marlas was sold to Santa Singh, his brother Basant Singh and their father Sobha Singh. If this plea had been raised and it had been found that the transaction, which was termed as a lease for 99 years was in fact a sale, the case would have presented no difficulty. It was perfectly open to the pre-emptor to come to court on the plea that the so-called lease of 99 years was in fact a sale, but that is not his case. In the plaint it is specifically mentioned that the land measuring 110 kanals and 10 Marlas was leased out to the plaintiff, his father and his brother in the year 1962 and the present sales have been make out of that land. Therefore, the very basis of the argument that the sale is ownership rights in land and not of lease-hold rights is without any foundation. The question whether a transaction is a lease or sale is a question of fact and not a question law. No facts have been brought on the record to prove that the lease of 1962, was in fact a sale. As a matter of fact, the plaintiff himself termed that as a lease and not as a sale. A party cannot be allowed to shift his stand specifically taken in the plaint and set up a brand new case in the second appeal. Therefore, the only question that is germane for the decisions of these appeals is whether the sale of lease-hold rights in pre-emptible. The learned counsel for the appellant fairly and frankly conceded that a sale of lease-hold rights is not pre-emptible and in any case if any authority is needed, reference may be made to Bhagwan Das v. Sidhu, 1907 Pun Re No. 136. The right of pre-emption under Section 4 of the Punjab Pre-emption Act is in respect of a sale. A sale necessarily implies transfer of ownership. Lease is not a transfer of ownership. Therefore, the present transaction is not pre-emptible and the lower appellate Court was right in coming to that conclusion.
6. It is not necessary to refer to a large number of decisions relied on by the learned counsel for the appellant including Amar Singh v. Sadhu Singh, AIR 1914 Lah 290. The basic rule in these decisions is that it is open to pre-emptor to prove that a transaction which is labelled as a lease is in fact a sale. There can be no dispute with this contention. But on the facts of the present case this contention was never raised and the trial court proceeded on the firm and agreed basis that the transaction of 1962 was a lease.
7. For the reasons recorded above, both these appeals fail and are dismissed with costs.
8. Appeals dismissed