1. This second appeal is directed against the decision of the Senior Subordinate Judge reversing on appeal the decision of the trial court dismissing the plaintiff's suit.
2. The land in dispute was sold by Kashmiri Lal in favour of the defendants Sain Dass and Sawan Mal for a sum of Rs. 900/-. The sale-deed was registered on 18th July, 1959. Sardari Lal Son of Bashambar Dass brought the present suit for pre-emption on the ground that he had a superior right of pre-emption as against the defendants. The defendants took the stand that the suit was for partial pre-emption and that they were the tenants of the vendor in respect of the land sold and, therefore, the suit was not maintainable. This plea was taken in view of the provisions of Section 17-A of the Punjab Security of Land Tenures Act (10 of 1953). The trial court held that the plaintiff had a superior right of pre-emption and that the suit was not for partial pre-emption, but dismissed the suit on the ground that one of the vendees was a tenant. On appeal by the pre-emptor, the lower appellate court, relying upon the principle that the tenant had joined a stranger with himself and was thus relegated to the position of a stranger could not get the benefit of Section 17-A reversed the decision of the trial Court and declared the plaintiff's suit. It was held by the lower appellate Court that the sale was indivisible. Against this decision, the present second appeal has been preferred by Sain Dass who has been found to be a tenant by the two courts below, which finding is immune from attack in second appeal.
3. The contention of the learned counsel for Sain Dass is that he is entitled to defeat the plaintiff's suit qua half of the land in dispute, in view of the provisions of Section 17-A of the Act. The learned counsel for the respondent-pre-emptor however, contents that the sale being indivisible, the suit cannot fail as Section 17-A is subject to a rider that the sale to a tenant along with others is a divisible sale and not an indivisible sale. In other words, the argument is that if the shares o the vendees are specified, the pre-emption suit will fail with regard to the share of the tenant in the land sold of which he is a tenant.
4. Curiously enough, both the counsel place reliance on Jang Singh v. Hardial Singh, (1962)64 Punj LR 1152, Gurbachan Singh v. Mohinder Singh, (1963)65 Punj LR 1026 and Damodar v. Hari Singh, (1970)72 Punj LJ 153, for their respective contentions.
5. In my opinion, the contention of the learned counsel for the appellant is sound and must prevail. In Gurbachan Singh's case, (1963)65 Punj LR 1026 which is the leading authority and which has been followed in Damodar's case, (1970)72 Punj LJ 153, it was held:--
'It is the tenant who is protected by Section 17-A of the Punjab Security of Land Tenures Act and not the sale as such and consequently the interest of the tenant in the land sold has to be determined whenever there is a sale by the owner in favour of the tenant along with others. Only the land sold to the tenant is exempted from pre-emption.'
For the above view the learned Judges placed reliance on Jan Singh's case (1962)64 Punj LR 1152.
6. The sole controversy before me is on a very limited ground. According to Mr. Sarin, unless the shares are specified in the sale-deed, the provisions of Section 17-A of the Act cannot be given effect to. whereas according to the learned counsel for the appellant, in case where the shares are not specified a presumption in law arises that the shares are equal. In other words, these shares would be deemed to be specified. Reliance in this connection is placed on Abdullah v. Ahmad, AIR 1929 All 817, wherein it was observed:
'In absence of specification of the shares purchased by two persons in the sale deed it must be held that both purchased equal shares.'
I fail to see how the specific mention of the shares in the sale-deed would stand on a better footing, than when there is no specification of shares and the shares can be ascertained on the presumption of law noticed in Abdullah's case, AIR 1929 All 817. In principle, I see no distinction in the two type of cases. It is only where it is impossible to ascertain the shares either from the sale-deed or on a presumption of law that the observations in Jang Singh's case. (1962)64 Punj LR 1152, Gurbachan Singh's case, (1963)65 Pun LR 1026 and Damodar's case, (1970)72 Punj LJ 153 that where the shares are unascertainable the tenant will not be entitled to the benefit of Section 17-A when he has joined with him strangers in the purchase, would apply. In the present case, it has to be held that the shares are ascertainable. The shares of the tenant is one-half and to the extent of one-half the plaintiff's suit had to tail in view of the mandatory provisions of Section 17-A of the Act.
7. For the reasons recorded above, I allow the appeal partly. The plaintiff's suit will stand dismissed qua half of the land in dispute, but the decree qua the other half of the land will stay. The plaintiff will only be required to pay half of the sale consideration. The amount paid in excess of half of the sale consideration be refunded to him. There will be no order as to costs.
8. On the oral request made by the learned counsel for the respondents, I grant them the certificate under clause 10 of the Letters Patent.
9. Order accordingly.