- (1.) Ghansham Dass exchanged the land in dispute with Ram Phul on 19th September, 1967. Kabul and his brother Hari Ram challenged this transaction through a suit for pre-emption on the ground that the transaction was in fact one of sale and it was pleaded that the plaintiffs who were tenants on the suit land had the right to pre-empt on payment of Rs. 1,000. The suit was contested by Ram Phul vendee who denied the allegations that the transaction was one of sale. On the pleadings of the parties, the learned trial Court framed the following issues :- 1. Whether the transaction in dispute is a sale as alleged ? 2. Whether the plaintiff has the superior right of pre-emption ? 3. Whether the sale price of Rs. 2,000 was fixed and paid in good faith in-case issue No. 1 is proved ? 4. In case Issue No. 3 is not proved what is the market value of the land in suit ? The suit was dismissed by the trial Court as issue No. 1 was found against the plaintiffs though they were held to be tenants under Ghansham Dass at the time of the sale. In appeal the Senior Subordinate Judge, Rohtak, set aside the judgment and decree of the trial Court and held that the transaction was one of sale. It was further found that only Kabul was a tenant on the suit land and not Hari Ram. In view of these findings, the suit of Kabul plaintiff only was decreed and he was granted decree for possession on payment of Rs. 2,233. He was directed to deposit the amount on or before 1st February, 1971. Being aggrieved, Ram Phul vendee has come up in second appeal to this Court and has only challenged the findings on issue No. 2.
(2.) The facts necessary for the decision of this issue are not in dispute. Kabul plaintiff was a tenant on the land in dispute, but on the application of Ram Phul under Section 9 of the Punjab Security of Land Tenures Act an order for his eviction was passed on 31st December, 1968, copy of which is Exhibit D6. In view of this order, having regard to the ratio of the decision of the Supreme Court in Bhagwan Das and others v. Chet Ram, 1970 PunLJ 780, it was canvassed before me that Kabul's tenancy had come to an end as he had lost the status of tenant by the order of eviction passed before the date of decree.
(3.) It is not in dispute that a pre-emptor, in order to succeed, must have a right to pre-empt not only at the time of sale but also at the institution of the suit and the passing of the decree by the trial Court. The only question to be determined is whether the tenancy of Kabul was determined and he lost his status of tenant by virtue of Exhibit D6 or he held the land in his capacity as tenant till the date of the decree, The application for the eviction of Kabul was made under Section 9(1)(i) of the Punjab Security of Land Tenures Act, 1953 (hereinafter called the Act), on the ground that Kabul was a tenant of a small land-owner. Under Section 9-A of the Act no tenant liable to ejectment under clause (i) of sub-section (1) of Section 9 could be dispossessed of his tenancy unless he is accommodated on a surplus area in accordance with the provisions of Section 10-A or otherwise on some other land by the State Government. In view of this provision, the Assistant Collector First Grade, Jhajjar, passed the order of ejectment in the following terms :- "in view of the above discussion Kabul respondent is ejected from the land in question after he has been settled on the surplus land equal to the land in dispute i.e. 10 units". From the above it would appear that no doubt an order of eviction had been passed against Kabul but this order is conditional on the tenant being settled on an equal area of the surplus land. Till he is settled the tenant cannot be evicted and in this situation it is not open to contend that the status of Kabul has ceased to be that of a tenant. The order being a conditional one does not come into operation at once and the mere passing of this order does not render the tenant liable to eviction. The status of Kabul, therefore, continues to be that of a tenant till he is settled in terms of the order, Exhibit D6 and not that of a trespasser as asserted by the learned counsel for the appellant. In coming to this conclusion, I find support from the decision of this Court in Hira Singh and others v. Haria and others, 1973 PunLJ 760, wherein while interpreting Section 9-A of the Act the following observations were made by P.C. Pandit, J. :- "Where on the landlord's application under Section 9-A read with Section 14-A of the Punjab Security of Land Tenures Act the Assistant Collector ordered the ejectment of the tenants from the suit land as soon as the tenants are accommodated on some surplus area by the Collector, the tenants were not accommodated on surplus area and were holding the Land, upon which it was contended that as only a conditional decree of ejectment had been made, the status of the tenants so long as they are not accommodated on the surplus area, will remain as tenants of the landlord, and this relationship will not end merely on the passing of the order of ejectment by the Assistant Collector, this was controverted on the ground that the moment the order of ejectment is passed the status of tenant ceases, held, the landlord could not on the basis of the order of the Assistant Collector, take out execution of that order on the very day it was made and dispossess the tenants, because the tenants could very well take their stand on the order itself and say that they could not be evicted unless the Collector had accommodated them on some surplus area. Their status till they are settled on the surplus area is not of trespassers. Therefore, they will be deemed to be the tenants of the landlord. In other words, their status will not change on the mere passing of the conditional ejectment order by the Assistant Collector. They entered on the land as tenants and they will continue to be so either till they are accommodated on the surplus area by the Collector or perhaps if and when it is proved on the record that the Collector had made available some surplus area for their settlement, but they had refused to go there.";