Mehar Singh, J. - (1.) ON November 13, 1956, Shiv Ram, vendor, sold the land in dispute to Ganga Ram and others, vendees, for a consideration of Rs. 6,000/ -. The vendor's nephew, Shiv Lal, has pre -empted the sale. The pre -emptor obtained a decree for possession of the land on deposit of a certain sum on or before May 15, 1958. The deposit was made on May 8, 1958. On May 27, 1958, the pre -emptor sought execution of the pre -emption decree to obtain possession of the land. While the execution Application was pending, 11 July, 30, 1958. Section 17 -A was inserted in the Punjab Security of Land Tenures Act, 1953 (Punjab Act 10 of 1953). By the Punjab Security of Land Tenures (Amendment) Ordinance, 1958 (Punjab Ordinance C of 1958), and subsequently this insertion was enacted by the Punjab Security of Land Tenders (Amendment) Act, 1959 (Punjab Act 4 of 1959) which last Act came into force on January 19, 3959. Punjab Act 10 of 1953 came into force on April 15. 1953. The new Section 17 -A of Punjab Act 4. Of 1959 reads: 17 -A. Certain sales of tenancy lands not pre -emptible. (I) Notwithstanding anything to the contrary contained in this Act or the Punjab Pre -emption Act, 1913, a sale of land comprising the tenancy of a tenant made to him by the land -owner shall not be pre -emptible under the Punjab Pre -emption Act, 1913, and no decree of pre -emption passed after the commencement of this Act in respect of any such sale of land shall be executed by any Court: Provided that for the purposes of this sub -section the expression tenant includes a joint tenant to whom whole or part of the land comprising the joint tenancy is sold by land -owner.
(2.) WHERE , after the commencement of this Act, a tenant, to whom the land comprising his ' tenancy is sold by the land -owner, has been dispossessed of such land by a pre -emptor in execution of a decree for pre -emption or otherwise, the tenant so dispossessed shall in the prescribed manner, have the option either to purchase the land from the pre -emptor on payment of the price paid to the tenant by the pre -emptor or to be restored to his tenancy under the pre -emptor on the same terms and conditions on which it was held by him immediately before the sale, on an Application made by him to an Assistant Collector on the first grade having jurisdiction within a period of one year from the commencement of the Pun -jab Security of Land Tenures (Amendment) Ordinance, 1958. An Application received under Sub -section (2) shall be disposed of by the Assistant Collector of the first grade in the manner laid down in Sub -section (2) of Section 10. In the wake of this statutory provision the execution Application of the pre -emptor was dismissed on May 2, 1959, on the ground that under Sub -section (I) of Section 17 -A the pre -emption decree was not executable. It appears that the pre -emptor made no further move in this respect. He, however, made an Application for mutation of his name as owner of the land on the basis of the pre -emption decree and the mutation having been rejected he instituted a suit for declaration, giving rise to this second appeal, that he is the owner of the land in dispute and that was on March 28, 1.960. (2) The Courts below have decreed the clam of the pre -emptor -Plaintiff. This second appeal first came for hearing before Mahajan, J., and a question in regard to the retrospective operation of the new Section 17 -A haying been raised the learned Judge has referred this question to larger Bench being of the opinion that it is of considerable importance and is likely to arise in a large number of cases. This is how this appeal has come before this Bench. (3) There are two parts of Sub -section (I) of Section 17 -A. The first part takes away right of pre -emption under the Punjab Pre -emption Act, 1913 (Punjab Act I of 1913), in regard to a sale of land comprising the tenancy of a tenant mafia to him by the land -owner, and the second part says that "no decree of pre -emption passed after the commencement of this Act in respect of any such sale of land shall be executed by any Court" it is apparent that the use of the words commencement of this Act' in the second part refers to commencement of Punjab Act 10 of 1953 for the insertion of new section is to be read in the context of that Act and when so read the meaning of these words is that the same refer to the commencement of Punjab Act 10 of 1953. This part is thus retrospective in operation in as much as although it has first been inserted by reason of the new Section 17 -A of the Punjab Ordinance 6 of 1958, which has been re -enacted by Punjab Act 4 of 1959, it becomes operative from the commencement of Punjab Act 10 of 1953, In the first part of the Sub -section the words 'commencement of this Act' or words to the like effect are not used and it follows immediately that the first part of Sub -section (I) of Section 17 -A is operative only from the date of the enforcement of the Punjab Ordinance 6 of 1958, which date, as stated, is July 30, 1958. Under Sub -section (2) of Section 17 -A where a tenant, who has purchased the land comprising his tenancy, has lost possession of the same 'after the commencement of this Act' by reason of a pre -emption decree, he is given right either to regain the title to the land subject to the conditions prescribed or to continue as a tenant if he so chooses to do and either of these relief 's he can obtain within one year from the commencement of Punjab Ordinance 6 of 1958, that is to say within one year of July 30, 1958. The use of words 'commencement of this Act' in this sub -section has the same meaning as in second part of Sub -section (I) and that is that the same have reference to the commencement of Punjab Act 10 of 1953. So that this sub -section has retrospective effect also from the date of the enforcement of the last mentioned Act which date is April 15. 1953 - For the purposes of the present case only Sub -sections (1) and (2) of Section 17 -A are for consideration and while Sub -section (2) and second part of Sub -section (I) have retrospective operation as the same operate from the commencement of Punjab Act 10 of 1953 which means from April 15, 1953, the first part of Sub -section (1) is not retrospective and is only operative from the commencement of Punjab Ordinance 6 of 1958, that is to say from July 30, 1958. This conclusion, however, does not decide the question that arise in the present case.
(3.) THE first question for consideration is when does title to land subject of sale pre -empted by a pre -emptor pass to the pre -emptor? When the Privy Council in Deonandan Prashad Singh v. Ramdhari Chowdhri, 44 Ind App 80 :, AIR 1916 PC 179 considered the question though the facts were somewhat different law comparable to Order 20 Rule 14(I) of the Code of Civil Procedure was Section 214 of the Code of Civil Procedure, 1882, which was in these words: When the suit is to enforce a right of preemption in respect of a particular sale of property. and the Court finds for the Plaintiff, if the amount of purchase -money has not been paid into Court, the decree shall specify a day on or before which it shall be so paid and shall declare that on payment of such purchase -money, together with the costs (if any) decreed against him, the plain till shall obtain possession of the property, but that if such money and costs are not so paid the suit shall stand dismissed with costs. In the wake of this provision in the Code of 1882 in the case in which the question for consideration was recovery of manse profits of land subject of the pre -emption decree for the period before the pre -emptor succeeded in the Privy Council, their Lordships observed - It therefore follows that where a suit is brought it is on payment of the purchase -money on the specified date that the Plaintiff obtains possession of the property, and until that time the original purchaser retains possession and is entitled to the rents and profits. This was so held in the case of Deokinandan v. Sri Ram, ILR 12 All 234 (FB) and there Mahmud J. whose authority is well recognised by all stated that it was only when the terms of the decree were fulfilled and enforced that the persons having the right of pre -emption become owners of the property, that such ownership did not vest from the date of sale, notwithstanding success in the suit, and that the actual substitution of the owner of the pre -empted property dates with possess on under the decree. It is clear from the observation of their Lordships that substitution of the pre -emptor for the vendee takes place not just from the date of payment and deposit of the purchase -money as found by the Court but from the date of possession of the preempted property under the pre -emption decree. This observation of the Privy Council has been approved by their Lordships of the Supreme Court in Bishan Singh v. Khazan Singh : AIR 1958 SC 838 but in the last mentioned case the argument in this respect that their Lordships considered was whether the obtaining of the pre -emption decree by the first pre -emptor clothed him with the title to the property so as to deprive the subsequent rival pre -emptor of equal right of pre -emption. It was when considering this argument that their Lordships have cited with approval the dictum of the Privy Council as above. It appears that the counsel did not consider it necessary, having regard to the facts of the case, to make reference to Sub -rule (I) of Rule 14 of Order 20 of the Code of Civil Procedure. That Sub -rule says - 14(I) Where the Court decrees a claim to preemption in respect of a particular sale of property and the purchase -money has not been paid into Court, the decree shall - (a) specify a day on or before which the purchase -money shall be so paid, and (b) direct that on payment into Court of such purchase -money together with the costs (if any) decreed against the Plaintiff, on or before the day referred to in Clause (a), the Defendant shall deliver possession of the property to the Plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase -money and the, costs (if any) are not so paid, the suit shall be dismissed with costs. When this Sub -rule is compared with Section 214 of the Code of Civil Procedure of 1882 it becomes clear that while in the case of the latter provision the title was to pass to the pre -emptor obtaining possession of the property, under the former provision title passes on the pre -emptor making the payment in the terms of the decree. The question of consideration of the effect of Rule 14(I) did not arise in Bishan Singh's case : AIR 1958 SC 838 and that is the reason why no reference was made to this rule in the arguments in that case. Their Lordships were considering, on the facts of that case, the question when title passed to the pre -emptor and in the case the first pre -emptor had claimed accrual of title merely on the passing of the pre -emption decree which claim was negatived by their Lordships. Now in this very judgment their Lordships have considered Lachhman Singh v. Natha Singh, AIR 1930 Lah 273 (FB) and Mohammad Saddig v. Ghasi Ram, AIR 1946 Lah 322 (FB) in connection with the Application of the doctrine of his pendent to a preemption suit but in these two cases it has also been held that in the Punjab title under the preemption decree passes on the making of the deposit of the purchase -money under Rule 14(1) of Order 20 of the Code of Civil Procedure. In the second of these two cases this has been clearly explained. It has been said during the arguments that in Bishan Singh's case : AIR 1958 SC 838 their Lordships have now laid down as an abstract proposition that substitution in consequence of a pre -emption decree only takes place from the date of obtaining of possession under the decree after payment of the purchase money as found in the Aceree. The learned Counsel for the clke adants has further pointed out that Rule 14(1) 01 Order 20 also envisages a decree in which reference is made to the delivery of possession of the property under a pre emption decree and the deposit of the purchase -money. On the contrary for the opposite -side the position urged is that having regard to the facts in Bishan Singh's case : AIR 1958 SC 838 their Lordships were not considering the effect of Rule (I) of Order 20 and have not laid down any such abstract proposition and further that while that sub -rule refers to the duty of the vendee to deliver possession of the preempted property under a. pre -emption decree, that does not affect the question of accrual of title to the pre -emptor, which accrues to him as soon as he has made deposit according to the terms of the decree as provided in this sub -rule. This last approach is supported by the two Full Bench cases of the Lahore High Court which appear to apply directly. Similar view has been taken by Kapur, J in Ram Singh v. M. Gainda Ram AIR 1953 Punj 163 If in the present case the argument on behalf of Defendants is accepted that in Bishan Singh's case AIR 1958 SC 838 what their Lordships have decided is that substitution under a pre -emption decree does not take place until the delivery of the possession of the pre -empted property under the decree, the Plaintiff "in the present case not having obtained possession under such a decree, he cannot obviously obtain a declaratory decree granted to him by the Courts below for the simple reason that his title to the land does not accrue until he obtains its possession. This alone is sufficient to dispose of this -second appeal but if their Lordships did not intend to lay down in Bishan Singh's case : AIR 1958 SC 838, any such proposition and the approval of •the observation of the Privy Council by their Lordships is to be read subject (1) to the facts of Bishan Singh's case : AIR 1958 SC 838 and (ii) to the facts of the Privy Council case with provisions of Section 214 of the Code of Civil Procedure of 1882, in that event another question remains for consideration. For my part, I am rather more inclined to the view that their Lordships did not intend in Bishan Singh's case : AIR 1958 SC 838' to lay down the proposition as urged on behalf of the Defendants and inconsistent with 'Rule 14(1) of Order 20.;