1. On 14th Dec. 1966 Kishan sold 24-Kanals 5 marlas of land to Ram Kishan and Randhir for a consideration of Rs.6,000/-. Charanji filed the present suit to pre-empt the aforesaid sale claiming himself to be the tenant of the vendor on the land sold. The trial court dismissed the suit, but the lower appellate Court found that the plaintiff was able to prove his tenancy with regard to 21 Kanals, 12 Marlas and therefore, passed a decree for possession for the aforesaid area on payment of proportionate price. the vendees have come to this Court in Second appeal
2. Mr. M. L. Sarin, appearing for the vendees has urged that after Kishan had created tenancy in favour of Charanji plaintiff in Rabi 1964, Kishan created two mortgages with possession in favour of Dhanpat Rai vide mortgage deeds dated 16th Nov. 1964 and 13th July, 1965 vide exhibits D. 2 and D. 3 respectively, in respect of the suit land and, therefore, from the date of the aforesaid two mortgages Charanji plaintiff became tenant of the mortgagee and therefore, on 14th Dec. 1966 when Kishan sold the property, the plaintiff cannot in law be treated tenant of the vendor and as such could not pre-empt the sale. The learned counsel wanted to take support of the definition of 'landowner and tenant' as contained in Punjab Tenancy Act, 1887 and Punjab Security of Land Tenures Act, 1953. The argument is certainly ingenious, but after hearing the counsel of the parties, I am of the view that there is no merit in the same.
3. Under S. 15 of the Punjab Pre-emption Act, the plaintiff could succeed only if he was able to show that he was tenant of the vendor on the date of sale, date of suit and the date of the decree of the trial Court. It is not disputed that the plaintiff became tenant of the vendor in Rabi 1964 and continued to be the tenant of the vendor till he created the two mortgages later on. What the counsel for the vendees wanted to urge was that the moment mortgages were created, the plaintiff ceased to be the tenant of the owner namely Kishan and became tenant of Dhanpat Rai mortgagee and since mortgages were not redeemed on the date of sale, therefore, the plaintiff continued to be tenant of the mortgagee up to the date of sale and thereafter, and therefore, cannot be deemed as tenant of the vendor. The argument is devoid of force. By fiction of law, Charanji may be treated as tenant of Dhanpat Rai mortgagee from the date of creation of the mortgages, but he would not cease to be tenant of the owner, namely Kishan. Originally he was tenant of Kishan and from the date of mortgages, he would be considered by legal fiction tenant of Kishan and Dhanpat Rai and will continue to be the tenant of these two persons till the mortgagees are redeemed, and the moment the mortgages are redeemed, he would again become tenant of Kishan alone. On this basis, I hold that Charanji plaintiff was tenant of Kishan vendor also on 14th Dec. 1966 when the made the sale and continued to be so and therefore, the present suit was correctly filed by him to pre-empt the sale as a tenant of the vendor. The learned counsel for the appellant has failed to show that by creation of the two mortgages the tenancy rights of Charanji plaintiff under Kishan owner came to an end either under any principle of law or on any precedent,
4. On first principles I am of the view that the tenancy rights of Charanji under Kishan would continue so long Kishan has some interest including equity of redemption in his favour. If instead of mortgaging the property Kishan had sold the same to Dhanpat Rai then all rights of Kishan would have vested in Dhanpat Rai at one and the same time and instead of Kishan. Dhanpat Rai would have become his full landlord and, therefore, any sale by Dhanpat Rai could be pre-empted by Charanji as his tenant because at that time he would be the tenant of the vendor. Instead of making a sale to Dhanpat Rai if mortgages had been created in his favour then what Kishan has done in law is that he has parted with part of rights in the immovable property while retaining some owner-ship rights namely equity of redemption and in this manner it cannot be said that Charanji plaintiff ceased to be tenant of Kishan.
5. For the reasons recorded above I do not find any merit in this appeal and dismiss the same, but without any order as to costs.
6. Appeal dismissed.