Punjab-Haryana High Court
(Io&M;) Rehmat vs Sarab Khan on 14 October, 2014
RSA No. 1536 of 1987 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No. 1536 of 1987
Date of Decision: 14.10.2014
Rehmat
....Appellant
Versus
Sarab Khan and another
....Respondents
CORAM: HON'BLE MRS. JUSTICE SNEH PRASHAR
Present: Mr. Arjun, Advocate
for the appellant.
None for respondents.
*****
SNEH PRASHAR, J.
1. This was an appeal assailing the judgment and decree dated 08.04.1986 passed by the Subordinate Judge II Class, Gurgaon and judgment dated 10.03.1987 passed by the District Judge, Gurgaon, whereby the suit for possession by preemption filed by appellant/plaintiff -Rehmat Khan was dismissed.
2. The facts gained from the record are that Smt. Lajwanti wife of Piare Kishan was the owner of agricultural land measuring 13 Kanals 3 Marlas (detail of which was given in Para No.1 of the plaint) situated within the revenue estate of village Jhimarawat Tehsil Ferozepur Jhirka, District Gurgaon, as per the Jamabandi for the year 1977-78 and Khasra Girdawari for the period Kharif 1981 to Kharif 1983 (hereinafter referred to as the suit land). RASHMI 2014.11.11 09:59 I attest to the accuracy and integrity of this document RSA No. 1536 of 1987 2 She sold the suit land to Sarab Khan and another respondents/defendants vide registered sale deed dated 01.09.1983 for a consideration of Rs. 16,000/-.
3. Appellant/plaintiff- Rehmat claiming to be in occupation of the suit land as a tenant, filed the instant suit for possession by pre-emption alleging that the suit land was sold by Smt. Lajwanti secretly and without notice to him. He also pleaded that the sale consideration of Rs. 16,000/- incorporated in the sale deed was a fictitious amount. The sale price was neither fixed in good faith nor was actually paid to the vendor by the vendees. The market value of the suit land was not more than Rs. 10,000/- at the time of sale. The appellant alleged that being a tenant in occupation of the suit land and the defendants being strangers, he had a superior right to pre-empt the sale and a prayer to the said effect was made by him.
4. The suit was contested only by respondent/defendant No.2- Fajjar since defendant No.1-Sarab Khan did not appear despite notice and he was proceeded against ex parte.
Controverting the pleas raised by the plaintiff Fajjar denied that the land was sold secretly without the knowledge of the plaintiff. He also denied that the sale consideration of the suit land was not fixed in good faith or was not actually paid to the vendor. According to him, even if the plaintiff was proved to be tenant on the suit land, he had no right to pre-empt the sale. Vendor Smt. Lajwanti had inherited the suit land after coming into force of the Hindu Succession Act and the case, therefore, was governed by the Provisions of Section 15(2) of the Punjab Pre-emption Act under which a tenant does not figure as having a pre-emptive right. Pleading that the plaintiff Rehmat was a consenting party to the sale deed and had participated in the RASHMI 2014.11.11 09:59 I attest to the accuracy and integrity of this document RSA No. 1536 of 1987 3 transaction of sale and therefore the suit was bad for partial pre-emption etc, the defendant sought dismissal of the suit.
5. Learned trial Court settled the issues on the rival contentions of the parties. The plaintiff as well as the defendant adduced evidence to support their respective pleadings. Finding that the plaintiff had failed to prove his superior right of pre-emption on the date of filing of the decree, the learned trial Court dismissed the suit.
Plaintiff preferred an appeal against the judgment and decree dated 08.04.1986 passed by the learned trial Court which too was dismissed by the learned District Judge, Gurgaon vide judgment dated 10.03.1987.
Feeling unsatisfied, the plaintiff preferred the instant appeal.
6. Heard Mr. Arjun, Advocate appearing on behalf of appellant.
7. Plaintiff-Rehmat tendered in evidence copy of Khasra Girdawari Ex-P5 for the period from October, 1983 to March 1985 in order to prove that he was in occupation of the suit land in the capacity of a tenant and that his name stands mentioned in the column of cultivation as a "gair marusi" Both learned trial Court as well as learned first appellate Court consistently accepted that plaintiff/appellant was proved to be in occupation of the suit land as a tenant under owner Smt. Lajwanti on 01.09.1983 i.e., the date on which the suit land was sold by Smt. Lajwanti to the defendants.
However, the defendants, who disputed the superior right of pre- emption of the plaintiff, proved that the plaintiff had since been ordered to be ejected from the suit land. They tendered in evidence Ex-D1 copy of decree and Ex-D2 copy of judgment dated 19.02.1986 passed by Assistant Collector First Grade, Ferozepur Jhirka in a petition for eviction filed by Sarab Khan RASHMI 2014.11.11 09:59 I attest to the accuracy and integrity of this document RSA No. 1536 of 1987 4 and Fajjar sons of Ajloo.
8. The provisions of Section 15(A) of the Punjab Preemption Act, 1913 postulate that a tenant must hold the land as a tenant till the date of decree passed by the trial Court. If during pendency of a pre-emption suit, the eviction of tenant is ordered, the tenant loses his status of a tenant to pre-empt the sale. Thus, undisputedly, a pre-emptee who claims a right of pre-emption on the ground of tenancy must hold the land in his capacity as a tenant up to the date a decree is passed by the trial Court.
9. In the instant case, the tenancy of the plaintiff/appellant was terminated by a decree of eviction as proved by the decree Ex-D1 and judgment Ex-D2 passed by Assistant Collector First Grade, Ferozepur Jhirka. Since the plaintiff ceased to be a tenant on the suit land, though he may have otherwise continued to be in occupation of the same, the plaintiff lost his superior right to pre-empt the sale. On this ground, his suit was dismissed by learned trial Court as well as by learned First Appellate Court. There being no two thoughts on the said proposition of law in my considered opinion, the decree passed by the Courts below calls for no interference.
10. The argument of learned counsel for the plaintiff/appellant that the trial Court and the First Appellate Court had not considered the objection of the plaintiff/appellant that the sale consideration of Rs. 16,000/- as incorporated in the sale deed dated 01.09.1983 was a fictitious sale price which was not actually paid to the vendor, has no merit. Firstly, because it was not a case where the plaintiff had challenged the sale or had claimed any right to do so; secondly, when the plaintiff failed to prove that he had a superior right to pre-empt the sale, there was no requirement to go into the RASHMI 2014.11.11 09:59 I attest to the accuracy and integrity of this document RSA No. 1536 of 1987 5 issue whether the sale consideration of Rs. 16,000/- was fixed in good faith and was actually paid or not to the vendor.
11. Thus, finding no merit in the appeal, the same stands dismissed.
14.10.2014 (SNEH PRASHAR)
rashmi JUDGE
RASHMI
2014.11.11 09:59
I attest to the accuracy and
integrity of this document