- (1.) The facts giving rise to the present Letter Patent Appeal may briefly be stated as follows : The land in dispute together with some of the land was originally evacuee property and 51 Standard Acres were allotted to Barkat Shah father of Sant Lal. Later on proprietary rights confirmed in due course. On 11th of December, 1956, vide registered sale-deed Exhibit PW 4/1, 11 Bihas and 4 Biswas of the land was sold by Sant Lal, defendant No. 1, in favour of Balkishan, defendant No. 2 for a sum of Rs. 4000/-. Kishnu claiming to be tenant of 4 Bighas and 6 Biswas of land, out of the land sold, filed a suit for possession by pre-emption on payment of Rs. 1035/-, being the proportionate amount of Rs. 2700/- which he claimed to have been actually paid. It was found as follows :- (1) that the plaintiff was continuously in possession as a tenant of the area claimed by him from 1950 upto the date of the sale; (2) that Sant Lal vendor and Barkat Shah were not a small holder; (3) that Rs. 1535.69 are the proportionate cost of the area claimed to be pre-empted. In view of the above, it was held that by virtue of Section 17 of the Punjab Security of Land Tenures Act, 1953, the tenant was entitled to pre-empt the suit land and he was granted a decree thereof on payment of Rs. 1535.69. On appeal, the learned Single Judge set aside this order on the ground that reading Sections 17 and 19 of the Punjab Security of Land Tenures Act together, Section 17 was inapplicable to the land which was evacuee property on the date of the commencement of the Punjab Security of Land Tenures Act, 1953. The suit of the plaintiff was consequently dismissed. He came up in appeal and the learned Single Judge held that since Section 19 has been amended and the qualifying words "at the commencement of the Act" were deleted by the Amending Act No. 32 of the 1959, the plaintiff was entitled to get the benefit of Section 17 and the case was consequently remanded. It is against this order that the vendee has come up in Letters Patent Appeal.
(2.) It will be necessary to reproduce the provisions of law that are applicable. Before the Punjab Pre-emption (Amendment) Act, 1960 (Act 10 of 1960) came into force on 4th of February, 1960, under Section 15 a tenant had no superior right to pre-empt. By virtue of Section 17 of the Punjab Security of Land Tenures Act, 1953, for the first time, such a right was given to a tenant. Relevant part of Section 17 is as follows :- 'Notwithstanding anything to the contrary contained in any law, usage or contract, and subject to the provisions of Section 18, a tenant of a landowner other than a small landowner :- (i) who 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............... (ii) ................................................................. shall in preference to the rights of other pre-emptors as provided in the Punjab Pre-emption Act, 1913 (Act I of 1913) except the defendants of vendor's grand-father, be entitled to pre-empt the sale..........of the land other than the land comprised in the reserved area of the landowner in the manner prescribed in that Act within one year from the date of the sale.......... Provided that no tenant referred to in this sub-section shall be entitled to exercise any such right in respect of the land or any portion thereof, if he had sublet the land or the portion, as the case may be to any other person unless during that period the tenant was suffering from a legal disability or physical infirmity, or, if a woman, was a widow or was unmarried." Section 18 gives right to certain tenants to purchase the land which was the subject matter of the tenancy and need not be referred to. Section 19, as it originally existed till it was amended in the year 1959, was to the following effect :- "Nothing contained in Section 17...........shall affect any land which is evacuee property as defined in the Administration of Evacuee Property Act, 1950 (XXXI of 1950) at the commencement this Act or any other land which may at any time be acquired by the Central Government for the resettlement of displaced persons." The result of the above was that a tenant who had been in cultivating possession for a continuous period of four years before the date of the sale would have a right to pre-empt the sale of the land by the landowner which formed the subject matter of his tenancy. However, his right would fail if : (i) the sale is by a landlord who is a small land-owner, or (ii) the sale is of the land by a big landowner, but out of his reserved area; or (iii) he is not in actual cultivating possession of the land, but had sublet the land to someone unless he is a person within the meaning of the proviso; or (iv) the land which is the subject-matter of the sale and his tenancy was evacuee property at the commencement of the Act, that is, on 15th of April, 1953. In the present case, there is no dispute that the sale is by a landlord who is not a small landowner and the land, which is the subject-matter of the sale, does not form part of the reserved area. It is further not disputed that the tenant was in actual cultivating possession of the land. The tenant failed before the first Appellate Court on the ground that the land which is the subject-matter of the sale and his tenancy was evacuee property on the 15th of April, 1953. This fact is not now disputed. The difficulty has arisen because Section 19 of the Security of Land Tenures Act as it originally existed was amended during the pendency of the appeal in this Court by the Punjab Security of Land Tenures (Second Amendment) Act, 1959 (Act No. 32 of 1959). By Section 4 of the Amending Act, the words "at the commencement of the Act" were omitted and Section 19, therefore, after this amendment, reads as follows :- "Nothing contained in Section 17 of Section 18 shall affect any land which is evacuee property as defined in the Administration of Evacuee Property Act, 1950...............". As stated above, before the date of the sale, the vendor had acquired the proprietary rights and it is now well-settled that once proprietary rights have been granted, the property ceases to be a part of the compensation pool and consequently also ceases to be evacuee property as defined in Administration of Evacuee Property Act, 1950.
(3.) The position, therefore, boils down to this that on the date of the sale, in view of Section 19 as it existed then, Section 17 will not be applicable to the land which was the subject-matter of the sale because on the date of the enforcement of the Punjab Security of Land Tenures Act, 1953, it was admittedly evacuee property as defined in the aforesaid Act and consequently the tenant, who had no right under Section 15 of the Punjab Pre-emption Act as it then existed, had also no superior right of pre-emption even under Section 17 of the Punjab Security of Land Tenures Act.;