Tek Chand, J. - (1.) THIS is a regular second appeal which has been referred by Mahajan, J., for disposal by a Division Bench. The facts of this case are that Sadhu Singh and Daulat Singh, Defendants 5 and 6, two brothers, sold land measuring 119 bighas 7 biswas to Jai Chand and three others, Defendants 1 to 4, for consideration stated to be 10,000. This land was under the tenancy of the Plaintiff Basti. The sale was effected on 15th of November, 1954, and Basti asserting his right of pre -emption under Section 17 of the Punjab Security of Land Tenures Act, 10 of 1953, instituted a suit on 15th of March, 1955, for pre -emption. On 11th November, 1955, the suit was decreed and the genuine consideration was held to be Rs. 8,000. The vendees appealed and the Additional District Judge allowed their appeal holding that the right of pre -emption as claimed by the Plaintiff had not been substantiated. From this decree the present regular second appeal was filed on 23rd of June, 1956. The regular second appeal came up before Mahajan, J., on 15th of February, 1961. Mahajan, J., expressed the view that it was not possible to decide this case without determining the question, which had not been properly determined by the Courts below, as to whether the vendors were "small landlords" within the meaning of Section 17 of the Act. The learned Single Judge remanded the case to the trial Court directing that Court to submit a report after enquiring whether at the date of the sale the vendors were possessed of the land more than the permissible limit under the provisions of the Act. According to the report the landlords, i.e., the vendors, were not found to be "small landlords". On that occasion the attention of the learned Single Judge was drawn to the Single Bench decision of Gosain, J., in Subedar Shangara Singh v. Indraj and Ors. Regular Second Appeal No. 390 of 1960, decided on the 27th of September, 1960. As Mahajan, J., had expressed doubts as to the correctness of that decision this matter has been referred to the Division Bench.
(2.) ON the pleadings of the parties several issues were framed including the first issue which is as under: (1) Is the Plaintiff's right of pre -emption superior to that of the Defendants? This is an appropriate stage to deal with the relevant provisions of Punjab Act 10 of 1953, which have to be considered. Sub -section (2) of Section 2 defines "small landowner" as a "landowner whose entire land in the State of Punjab does not exceed the 'permissible area'." 'Permissible area' is defined in the succeeding Sub -section as meaning thirty standard acres and with the other portions of this definition which covers other contingency we are not concerned. Sub -Section 4 defines 'reserved area' as meaning the area lawfully reserved under the Punjab Tenancy (Security of Tenure) Act, 1950 (Act 22 of 1950), as amended by President's Act of 1951 or under this Act. The relevant portion of Section 5 runs as under: 5.(1) Any reservation before the commencement of this Act shall cease to have effect and subject to the provisions of Sections 3 and 4 any landowner who owns land in excess of the permissible area may reserve out of the entire land held by him in the State of Punjab as land -owner, any parcel or parcels not exceeding the permissible area by intimating his selection in the prescribed form and manner to the patwari of the estate in which the land reserved is situate or to such other authority as may be prescribed: Provided that * * * * * * * * * * (2) * * * * * (3) A landowner shall be entitled to intimate a reservation within six months from the date of commencement of this Act, and no reservation so intimated shall be varied subsequently whether by act of parties or by operation of law, save with the consent in writing of the tenant affected by such variation or until such time as the right to eject such tenant otherwise accrues under the provisions of this Act. Thus according to Sub -section (3) the landlord had to intimate a reservation by 15th of October, 1953, the date of commencement of the Act being 15th of April, 1953. In passing it may be mentioned that Sections 5 -A, 5 -B and 5 -C were inserted by Section 3 of the Punjab Security of Land Tenures (Amendment) Act, 46 of 1957, and the effect of these provisions was that in the case where land, was situated in more than one. Patwar Circle, an intimation by the landowner or tenant, of reservation, was to be made within a period of six months from the commencement of the Amending Act of 1957. Section 17 is reproduced below in extenso: [His Lordship read Section 17 and continued:] This section confers a right upon a tenant of landowner other than the "small landowner" to pre -empt sale. This right is exercisable under the following condition: The pre -empting tenant has been in continuous occupation of the land comprised in his tenancy for a period exceeding four years on the date of the sale of the land or foreclosure of the right to redeem the land. This right of pre -emption shall be in preference to the rights of other preemptors as provided in the Punjab Pre -emption Act, 1913 (Act I of 1913), except, the descendants of vendor's grandfather, who would be entitled to pre -empt the sale or foreclosure of the land, other than the land comprised in the reserved area of the landowner. This shows that the right of the tenant to preempt under Section 17 follows and does not precede the right of the descendants of vendor's grandfather. It is further required that this right of pre -emption is in respect of the land other than that comprised in the reserved area of the landowner. These three conditions have to be satisfied by the tenant seeking pre -emption under Section 17 before he can exercise his right to preempt sale, etc., of the land. In this case the Plaintiff Appellant satisfies two out of the three requirements, namely, that he has been in continuous occupation of the land comprised in his tenancy for a period exceeding four years on the date of the sale, and also that the descendants of the vendor's grandfather are not asserting their prior right to pre -empt. In order to establish the Plaintiffs right to pre -empt he has further got to show that it is in respect of the land other than the land comprised in the reserved area of the landowner. This he has not been able to substantiate. The contention of the learned Counsel for the Plaintiff -Appellant is that, once he has satisfied the first two requirements, he is entitled to a decree by way of preemption except where the Defendant has successfully shown that the area in question is within the reserved, area. In other words the argument is that though there are three requirements, on the satisfaction of which, a decree for pre -emption can be passed, nevertheless, compliance with the first two requirements should suffice so far as the Plaintiff tenant is concerned. He is liable to be defeated if the Defendant can show that the land in suit falls within the 'reserved area'. The reason for this contention advanced by the learned Counsel is that the land -owner vendor would alone know what area he has reserved and when was reservation made by him, i.e., whether within the period prescribed by the statute or beyond that period. I am not convinced of the soundness of this contention. In this case the contesting Respondents whom the Plaintiff has to defeat are not the vendors but the vendees. The learned Counsel has placed reliance upon Section 106 of the Indian Evidence Act and on Order VI, Rule 13 of the Code of Civil Procedure, and to my mind, neither of the provisions are applicable and their scope has been entirely misconceived. Section 106 lays down a rule of burden of proof on a person when any fact is especially within the knowledge of that person. It cannot be said that the fact that a particular area is comprised in the reserved area of the landowner, or not, is especially within the knowledge of the Respondent -vendees. Order VI Rule 13 dispenses with proof, on allegation of fact which the law presumes in favour of the parties as to which the burden of proof lies upon the other side. Section 3 of the Act comprises reservation of land by small land -owner not exceeding in aggregate the permissible area. A land -owner has to reserve it by intimating his reservation, in the prescribed form and manner to the Patwari of the estate, in which the land reserved is situated, or to such other authority as may be prescribed, before expiry of six months from possession of the land so sold. It is open to the tenant to inspect the public record and to find out if the area in his occupation was reserved by the land -owner or not. After a careful consideration of the contentions of the learned Counsel for the Plaintiff -Appellant, I cannot persuade myself to accept his view -point, that the Plaintiff tenant is entitled to a decree by way of pre -emption without adducing evidence that the land in suit falls outside the reserved area. In my view it is for the Plaintiff to allege and then to prove that the pre -emptive decree is being sought in respect of an area other than the reserved area. I agree with Justice Gosain, and I am of the view that the Plaintiff pre -emptor has to show that the sale of the land was pre -emptible by proving that he possessed the requisite qualifications, and further, that the land was such with respect to which the suit for pre -emption could be instituted at his instance. One important condition which had to be substantiated before a decree for preemption could be passed remains unsatisfied. That being the case in my view the Plaintiff cannot succeed.
(3.) IT has been urged on behalf of the Plaintiff, that he should be given now an opportunity to lead evidence in order to show, that the area in his occupation and the subject -matter of the suit was other than the reserved area. Plaintiff's counsel says that Justice Gosain in that case had given an opportunity to the Plaintiff by remanding the case for determination of this question after giving opportunity to the parties to lead their evidence. I do not think that the direction given in that case is a precedent of a sufficiently persuasive character for passing a similar order. The discretion exercised by a Court depends upon the particular facts in each case. In my view there does not appear to be any justification for giving to the Plaintiff a further opportunity at this stage. The first issue is sufficiently comprehensive and Section 17 of the Act contains no ambiguity. This case has once been remanded by the learned Single Judge and on that stage the Plaintiff did not ask for an opportunity to lead evidence to show, that the land in suit was not included in the reserved area. I do not think that this Court will be justified in granting the indulgence prayed for in this case.;