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Malhu Jaishi and anr. Vs. Shamlal and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Property
CourtPunjab and Haryana High Court
Decided On
Case NumberLetters Patent Appeal No. 232 of 1964
Judge
Reported inAIR1966P& H179
ActsPunjab Security of Land Tenures Act, 1953 - Sections 17A; Punjab Pre-emption Act, 1913 - Sections 15; Punjab Pre-emption (Amendment) Act, 1961; Tenancy Law
AppellantMalhu Jaishi and anr.
RespondentShamlal and ors.
Appellant Advocate Shamair Chand,; D.R. Marchand and; Parkash Chand Jain
Respondent Advocate H.L. Sarin, Sr. Adv.,; M.S. Jain and; Asha Kohli, Ad
DispositionAppeal dismissed
Cases ReferredBola v. Bhikha
Excerpt:
- - , clearly said that the doctrine of lis pendens applies only to a transfer pendente lite but cannot affect a pre-existing right, so that, if the sale is a transfer in recognition of pre-existing and subsisting right it would not be affected by the doctrine as the transfer does not create new rights. from whichever angle, therefore, this matter is considered, it is clear that the pre-emptors' right in the present litigation could not be defeated by the appellants on the ground that they were tenants and had ultimately succeeded in purchasing the land from the original vendees. on these conclusions the present appeal must in my opinion fail and i would dismiss it with costs......vendees was not in law tenable because the sale sought to be preempted, that is, the first sale in june 1959, was not a sale to a tenant and, the bar created by section 17-a of the punjab security of land tenures act was therefore inapplicable. in the result, the suit was decreed. mahlu and others appealed but that appeal was dismissed. they then brought a second appeal to this court which was heard by capoor, j., sitting alone, and, having considered the arguments on behalf of the appellants, he found no substance in them and affirmed the view of the courts below that section 17-a of the punjab security of land tenures act was not a bar to the pre-emptors' claim in the present case. the appeal was, therefore, dismissed with costs. against that decision mahlu and others have.....
Judgment:

Dulat, J.

1. On the 29th June, 1959 Nathi sold his land for Rs. 10,000/- to Charan Singh and others. A suit to pre-empt that sale was filed on the 29th June 1960 by Sham Lal and others who claimed to be co-sharers in the Khata out of which the land had been sold by Nathi and who also claimed to be closely related to Nathi and therefore, entitled to preempt the sale. While this suit was pending, on the 10th August 1960 Charan Singh and others proceeded to sell the same land to Mahlu and others and on this Mahlu and others were joined in the suit for pre-emption as defendants 8 to 10. The sale to Mahlu and others was also for Rs. 10,000/-. The suit for pre-emption was resisted in the circumstances mainly by Mahlu and others and the one plea raised by them, with which we are now concerned, was that they were tenants in the land sold and, in view of Section 17-A of the Punjab Security of Land Tenures Act, a sale made in favour of a tenant was not subject to any right of preemption. The trial Court found that the plaintiffs in the suit had a right of preemption as co-sharers and that the plea raised by the subsequent vendees was not in law tenable because the sale sought to be preempted, that is, the first sale in June 1959, was not a sale to a tenant and, the bar created by Section 17-A of the Punjab Security of Land Tenures Act was therefore inapplicable. In the result, the suit was decreed. Mahlu and others appealed but that appeal was dismissed. They then brought a second appeal to this court which was heard by Capoor, J., sitting alone, and, having considered the arguments on behalf of the appellants, he found no substance in them and affirmed the view of the Courts below that Section 17-A of the Punjab Security of Land Tenures Act was not a bar to the pre-emptors' claim in the present case. The appeal was, therefore, dismissed with costs. Against that decision Mahlu and others have brought the present appeal under Clause 10 of the Letters Patent.

2. For appreciating the argument raised before us two dates have to be borne in mind, apart from the fact that the sale in favour of the present appellants was made after the suit for pre-emption had been instituted. The first date is of an amendment made in the Punjab Pre-emption Act by which a right of preemption was given to a tenant in certain circumstances, the amendment having been made by Punjab Act 10 of 1960. This was of course long after the original sale in the present case had been made although it was before the filing of the present suit which was instituted in June 1960. Punjab Act 10 of 1960 took effect from February 4, 1960. The second date is the date of Section 17-A of the Punjab Security of Land Tenures Act which was enacted in January 1959.

3. Mr. Shamair Chand's submission in support of the present appeal is that a pre-emptor cannot succeed merely because he may have a right of pre-emption at the time of the sale which he seeks to pre-empt but must also have a right at the time the decree is granted to him which proposition is not in serious dispute before us, but he goes on to add that where a vendee transfers the property sold to him to another person and does so within the period of limitation fixed for a suit to enforce a right of pre-emption, the second transferee is in law substituted for the original vendee and is able to raise all pleas open to him. Reliance in this connection is placed by Mr. Shamair Chand on a decision of the Lahore High Court in Sant Kaur v. Teja Singh, AIR 1946 Lah 142. What the Full Bench, however, held in that case was something rather different. As the head note of that case puts it, the proposition was that the doctrine of lis pendens, although it does apply to pre-emption suits, does not apply when a vendee transfers the purchased property to another person in recognition of that other person's right of preemption and does so within the period of limitation. In the present case thus, if the second sale in favour of the present appellants had been made in recognition of any right of pre-emption vesting in them, the rule laid down by the Lahore High Court would have been applicable and so also is Mr. Shamair Chand's argument. The fact, however, is that the appellants did not have any right of preemption in respect of the sale made on the 29th June 1959 and were incapable of asserting any such right. The appellants were, of course, tenants in the land but the Punjab Pre-emption Act gave no right of pre-emption to them at all, that is at the time of the sale in June 1959. That right was given to them much later in February 1960. It is therefore, entirely wrong to suggest in the present case that the sale in favour of the appellants was made in recognition of any right of pre-emption of theirs, for in respect of the sale of the 29th June 1959 there was no such right. The argument based on the decision of the Lahore High Court in AIR 1946 Lah 142, therefore, breaks down.

4. Mr. Shamair Chand then urges that in any case the appellants should be deemed to have been substituted in place of the original vendees because they have after all purchased the land from those vendees and once they are substituted, they should be allowed to raise all the pleas open to them according to law including the plea that a sale of land to a tenant is not subject to a right of pre-emption as laid down in Section 17-A of the Punjab Security of Land Tenures Act. This argument ignores the plain fact that the sale which is sought to be pre-empted or, in other words, which is sought to be subjected to a right of pre-emption, is not the sale made in favour of the appellants at all. The sale pre-empted is of the 29th June, 1959 and that was not made in favour of the appellants and consequently not a sale to a tenant covered by Section 17-A of the Punjab Security of Land Tenures Act. There is, therefore, no substance in the suggestion that because the appellants ultimately purchased this land, they should be deemed to have done so on the 29th June 1959 and the sale should be taken to have been a sale to a tenant.

The Supreme Court had occasion to consider this question of substitution in order to determine whether the doctrine of lis pendens would or would not apply to a claim for pre-emption and in Bishan Singh v. Khazan Singh, AIR 1958 SC 838 Subba Rao, J., clearly said that the doctrine of lis pendens applies only to a transfer pendente lite but cannot affect a pre-existing right, so that, if the sale is a transfer in recognition of pre-existing and subsisting right it would not be affected by the doctrine as the transfer does not create new rights. In the present case, however, it is clear that the transfer in favour of the appellants was not in recognition of any right of pre-emption as none existed in their favour in connection with sale of June 1959. The transfer to the appellants, on the other hand, created new rights in them and, as observed by the learned Single Judge, such a transfer would be hit by the doctrine of lis pendens. From whichever angle, therefore, this matter is considered, it is clear that the pre-emptors' right in the present litigation could not be defeated by the appellants on the ground that they were tenants and had ultimately succeeded in purchasing the land from the original vendees.

Mr. Shamair Chand referred to some other decisions, two of them being of the Punjab Chief Court-- (1) Dhanna Singh v. Gurbaksh Singh, 91 Pun Re 1909 and (2) Bola v. Bhikha, 8 Pun Re 1919 : (AIR 1919 Lah 92). They are not in point. The facts of the present case are such that the propositions relied upon by learned counsel are not applicable here. The original sale was not a sale hit by section 17-A of the Punjab Security of Land Tenures Act and that is the only transaction which is being subjected to a right of pre-emption. The appellants obtained the property by transfer but in respect of the sale sought to be preempted they had no right of pre-emption and they cannot, therefore, be substituted in place of the original vendees. On these conclusions the present appeal must in my opinion fail and I would dismiss it with costs.

D.K. Mahajan, J.

5. I agree.


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