V.P. Gupta, J.
1. Aggrieved from the judgment and decree, dated 28-9-1981, passed by the District Judge, Mandi, Khem Singh (defendant 1) has filed this appeal.
2. Smt. Lachhi and Smt. Balmo (de-fendants 2 and 3) daughters of Jai Ram sold land measuring 3-13-15 bighas, i.e. l-/10th share of Khata No. 12/26 to 30, measuring 36-17-12 bighas, situate in village Shamsher Mahal Kurani, Tehsil Chachiot, District Mandi, to Khem Singh (defendant 1) for Rs. 3000/-, vide registered sale deed dated 11-10-1977.
3. Kapoor Singh (plaintiff) filed a suit for possession of this land by pre-emption, alleging that the plaintiff being a co-sharer in the Khata and also brother of the vendors has a preferential right of pre-emption. He further alleged that he offered the whole of the sale price to the defendants but the defendants refused to accept the same. He also alleged that no notice of the sale was given to him.
4. The suit was contested by the defendants and it was alleged that the suit was not properly valued, for purposes of court-fee and jurisdiction because a house was standing on the disputed land and plaintiff was liable to pay court-fee on the market value of the share of the house. Another objection was that the land was not agricultural land and, therefore, was not preemptible. The plaintiff's preferential right to pre-empt the sale was denied and. it was alleged that the plaintiff was estopped from filing the suit by his own conduct and that the suit was not within time and was not maintainable in law.
5. After replication the following issues were framed by the Subordinate Judge on 16th April, 1979:
Whether the suit is not properlyvalued for the court-fee and jurisdiction?
Whether the suit land is agriculturalland in nature, if so, its effect?
Whether the plaintiff has got apreferential right to pre-empt?
Whether the plaintiff isestopped to file the suit?
Whether the suit is within limitation?
Whether the suit is not maintainable?
6. On 13th November, 1979, the plaintiff gave a statement that he had filed the suit for possession of the land, only and did not claim the gharat (water-mill). He stated that he had no concern with the gharat situate in khasra No. 877, measuring 0-0-12 bigha of the disputed land. In view of this statement of the plaintiff the objection regarding court-fee was given up by the defendants' counsel and as a result thereof vide order, dated 13-11-1979, issue 1 was decided In favour of the plaintiff and against the defendants.
7. On issue 2, the Sub-Judge held that the suit of the plaintiff was for partial pre-emption and that the suit land was partially agricultural land. Issue 2 was decided against the plaintiff and issue 6 in favour of the defendants. Issues 3 to 5 were decided in favour of the plaintiff. In view of these findings the plaintiff's suit was dismissed on 31-1-1981.
8. The plaintiff filed an appeal in the court of District Judge and by his judgment, D/- 28-9-1981, the Dist. Judge held disputed land was 'agricultural land' as envisaged by the provisions of the Punjab Pre-emption Act. He accepted the appeal of the plaintiff and set aside the judgment and decree of the Sub-Judge and passed a decree for possession of the suit land in favour of the plaintiff and against the defendants, barring the land of joint khasra number 877 with respect to which the suit was dismissed.
9. Shri Manohar Lal Sharma, the learned counsel for the defendant-vendee now contends that the suit of the plaintiff is for partial pre-emption and that the land shown being banjar and gairmumkin is not pre-emptible.
10. He also contends that the vendee 8s the brother's son of the vendors while the plaintiff is the brother of the vendors and the plaintiff's right of preemption is not superior.
11. Shri M.C. Mandhotra, the learned counsel for the plaintiff (respondent) contends that the suit is not for partial pre-emption and the plaintiff has a superior right of pre-emption. He further contends that the suit should also be decreed with respect to khasra No. 877.
12. I have considered, the respective contentions and have also gone through the records.
13. The right of pre-emption is available with respect to 'agricultural land' 'village immovable property' or 'urban immovable property' as is mentioned in Section 4 Punjab Pre-emption Act.
14. The expression 'land' means land which is not occupied as the site of any building in a town or a village and is occupied or let for agricultural purposes or for purposes subservient to agriculture or for pasture and includes: (a) the sites of buildings or other structures on such land; (b) a share in the profits of or an. estate holding; (c) any dues or any fixed percentage of the land revenue payable by any inferior landowner to a superior landowner; (d) a right to receive rent; (e) any right to water enjoyed by the landowner of occupier of land as such; (f) any right of occupancy; and (g) all trees standing on such land.
15. Thus 'agricultural land' as well as land which is used for purposes subservient to agriculture or for pasture, etc. also falls within the definition of 'land'. Similarly, sites of buildings or other structures on such land are also within the definition of 'land'.
16. Now by sale deed, dated 11-10-1977 (copy of which is Exhibit PA) defendants 2 and 3 have sold land measuring 3-13-15 bighas, i.e. 1/10 share of Khata No. 12, Khatauni Nos. 26 to 30 of Jamabandi 1969-70 (48 plots) measuring 36-17-12 bighas. In the sale deed there is no mention of sale of any house, gharat etc. In the plaint it is stated that the plaintiff is willing to pay the whole of the sale price of Rs. 3080/-and wishes to be substituted in place of the vendee (defendant 1). In the written statement the defendants never raised any objection that the plaintiffs suit is for partial pre-emption or that the plaintiff has not included any portion of the property in his suit, which was sold to Khem Singh defendant 1 by the sale deed. The copy of the Jamabandi for 1977-78 is Exhibit DA and copy of Jamabandi for 1969-70 is Exhibit PB. In the sale deed (Exhibit PA) reference is made to the entries of Jamabandi 1969-70 (Exhibit PB) because the Khataunis as given in Exhibit PB tally with the Khataunis mentioned in Exhibit PA-Further the sale deed was executed on 11-10-1977 and the jamabandi of 1977-78 was not available at that time.
17. From the jamabandi of 1969-70 (Exhibit PB) it is not proved that any portion of the property did not fall within the definition of the word 'land'. From entries of jamabandi 1977-78 (Exhibit DA) it is proved that some of the land in the whole Khata is Gair Mazrua Gair Mumkin. This area is negligible, because out of 36-17-12 bighas an area of 34-15-16 bighas is entered as agricultural while only 2-1-16 bighas is shown as Gair Mumkin. This Gair Mumkin area includes Kuhl, Bowli Beer (boundary), house, water-mill, etc. The land entered as Bowli, Kuhl, Beer (boundary), water-mill, etc. in fact falls within the definition of the word 'land'. Residential house may also fall within the definition of the word 'land' as it is situate in agricultural land. There is no portion of the land which is shown as Banjar in Exhibit PB or Exhibit FA. Even if some portion of the land had been shown as Banjar, still it would have fallen within the definition of the word 'land'. Thus whole of disputed property is covered within the definition of the word 'land' and is pre-emptible.
18. The contention that the suit is for partial pre-emption is also without any force. The plaintiff has offered the whole of the sale price and wants himself to be substituted in place of the vendee. He never stated that he wants to pre-empt a portion of the sold property or that he wants to pay less amount than what is recited in the sale deed. In statement, dated 13-11-1979 (which was recorded for deciding the issue of court-fee only) the plaintiff stated that he has filed the suit for the land and is not concerned with the Gharat (water-mill) situated in Khasra No. 877. By this statement (recorded on 13-11-1979) the plaintiff has nowhere stated that he gives up his claim for the land of Khasra No. 877.
19. The sale is regarding 1/10th share of Khata No. 12. There are many co-sharers in this Khata No. 12 and the land of Khasra No. 877 is only 0-0-12 bigha in the whole Khata No. 12. In case of decree, the plaintiff will get only l/10th share of Khata No. 12. Therefore, existence of a Gharat or a house in any particular khasra number is not material for the purposes of this suit. The vendors, defendants 2 and 3 have sold only land (which forms l/10th share of the Khata) and the plaintiff will become a joint owner in the Khala in case his suit is decreed. The defendants have not raised any objection regarding partial pre-emption in the written statement and there is also no issue to that effect. In these circumstances the plaintiff's suit is not for partial preemption.
20. Plaintiff is the brother of the vendors and defendant 1 (vendee) is the brother's son of the vendors. The plaintiff has a superior right of pre-emption as has been held in a Full Bench judgment Inder Singh v. Gulzara Singh (AIR 1969 Delhi 154). This contention of the appellants' counsel is also repelled.
21. The District Judge has dismissed the suit of the plaintiff with respect to the land of joint khasra No. 877 on the ground that the plaintiff had given up his claim to the Gharat situate in Khasra No. 877. As already mentioned, the plaintiff has only stated that he did not claim the Gharat situate in Khasra No. 877. In the sale deed (Exhibit PA) only land has been sold and the plaintiff has stated that he wants to be substituted in place of the vendee. Therefore, it cannot be held that the plaintiff gave up his claim for any portion of the land which was sold by sale deed (Exhibit PA) including Khasra No. 877. It may be a different matter if in the ultimate partition of the joint land the plaintiff is not allotted Khasra No. 877 or any portion of it.
22. In view of what has been stated above, the whole of the plaintiff's suit should have been decreed. The plaintiff (respondent) has not filed, any appeal or cross-objection against the judgment of the District Judge but the learned counsel for the respondent/plaintiff contends that powers under Order XLI, Rule 33, Civil P.C., should be exercised. As the plaintiff's suit is for preemption, which gives him a right of substitution and the plaintiff is to pay whole of the sale price, therefore, taking all the facts into consideration, I feel that it is a fit case for invoking the powers under Order XLI, Rule 33, Civil P.C. In exceptional cases Order XLI, Rule 33 enables the court to pass such a decree as ought to have been passed or as the nature of the case may require to do complete justice between the parties.
23. As a result of the above discussion, the present appeal of the defendant fails, but the decree of the District Judge is varied to the extent that the dismissal of plaintiffs suit with respect to Khasra No. 877 is set aside and now the plaintiff's suit is decreed for the whole of the suit land against the defendants subject to plaintiff's paying Rs. 3000/- in the court, minus l/5th of the amount already deposited in Court, within a period of two months from today, and in default of payment of the amount the suit of the plaintiff shall be deemed to be dismissed.
24. The parties are left to bear their own costs throughout.