A.D. Koshal, J. - (1.) THE following pedigree -table lends assistance in appreciating the facts involved in this plaintiff's second appeal which has arisen from a suit for pre -emption:
(2.) MEHMA Singh was the last male holder of the land in dispute which has an area of 67 bighas 14 biswas. On his death, his widow Shrimati Basanti succeed to the land. Shrimati Basanti herself died on the 16th of July, 1956, i.e., about a month after the enforcement of the Hindu Succession Act and her daughters Kartaro and Angrezo became owners of the land as her heirs. On the 18th March, 1964, Kartaro and Augrezo sold the disputed land to Shrimati Jas Kaur and others, respondents Nos. 1 to 10, for Rs. 20,000/ - by a registered sale deed. The appellant brought a suit for possession of the land on the basis of pre -emption with the allegations that he was the son of the vendors' father's brother and was also a cosharer in the khata of which the disputed land formed a part and that these two qualifications gave him a right of pre -emption in respect of the sale as against respondents Nos. 1 to 10. It was also pleaded by him that the actual price paid for the land in dispute was Rs. 12,000/ - and that the balance had been fictitiously added merely to scarce away prospective pre emptors. Respondents Nos. 1 to 10 resisted the suit and pleaded that the entire ostensible price had actually been paid, that the appellant was no relation of the vendors or a cosharer in the said khata and had, therefore, no right to pre -empt the sale and that the suit was liable to dismissal as it was for partial pre -emption. Another plea raised was that respondents Nos. 1 to 10 were entitled to the expenses incidental to the sale in the event of the suit being decreed.
(3.) THE parties went to trial on the following issues: 1. Is the suit for partial pre -emption as alleged? If so, with what effect? O.P.D. 2. Is the plaintiff possessed of preferential right of pre -emption? O.P.P. 3. Was the sale consideration of Rs. 20,000/ - fixed in good faith or actually paid? O.P.D. 4. In case issue No. 3 is not proved, what is the market value of the disputed property? O.P. Parties. 5 Are the defendants entitled to registration expenses besides sale consideration? O.P.D. 6. Relief. Later on, respondents Nos. 1 to 10 amended their written statement and added an objection that the appellant had no right to pre -empt the sale in dispute because the land covered by it had been inherited by the venders from their mother. Additional issue No. 5 -A was, therefore, framed by the trial Court and is in the following terms: 5 -A. Whether the vendors -defendants inherited the suit -land from their mother ? If so, its effect ? O.D. The suit was decreed on the 19th of March, 1966, by Shri D.K. Mahajan, Subordinate Judge 1st Class, Rajpura, who held that although the disputed land was inherited by Kartaro and Angrezo vendors from their mother, Shrimati Basanti, that fact did not disentitle the appellant to pre -emption as his case was covered not by sub -section (2) but by sub -section (1) of section 15 of the Punjab -Pre -emption Act as amended in 1960. That section is in the following terms: 15. (1) the right of pre -emption in respect of agricultural land and village immovable property shall vest - (a) where the sale is by a sole owner, - FIRST, in the son or daughter or son's son or daughter's son of the vendor; SECONDLY, in the brother or brother's son of the vendor; THIRDLY, in the father's brother or father's brother's son of the vendor; FOURTHLY, in the tenant who holds under tenancy of the vendor the land or property sold or a part thereof; (b) where the sale is of a share out of joint land or property and is not made by all the co -sharers jointly, FIRST, in the sons or daughters or sons' sons or daughters' son of the vendor orvendors; SECONDLY, in the brothers or brothers' sons of the vendor or vendors; THIRDLY, in the father's brothers or fathers' brothers' sons of the vendor or vendors; FOURTHLY, in the other co -shares; FIFTHLY, in the tenants who hold under tenancy of the vendor or vendors the land or property or a part thereof; (c) where the sale is of land or property owned jointly and is made by all the co -shares jointly - FIRST, in the sons or daughters or sons' sons or daughters' sons of the vendors; SECONDLY, in the brothers or brother's sons of the vendor; THIRDLY, in the father's brothers or father's brother's sons of the vendors; FOURTHLY, in the tenants who hold under tenancy of the vendors or any of them the land or property sold or a part thereof. (2) Notwithstanding anything contained in sub -section (1) - (a) where the sale is by a female, of land or property to which she has succeeded through her father or brother or the sale in respect of such land or property is ay the son or daughter of such female after inheritance, the right of pre -emption shall vest, - (i) if the sale is by such female, in her brother or brother's son; (ii) if the sale is by the son or daughter of such female, in the mother's brothers or the mother's brother's sons of the vendor or vendors; (b) where the sale is by a female of land or property to which she has succeeded through her husband, or through her son in case the son has inherited the land or property sold, from his father, the right of pre -emption shall vest, - FIRST, in the son or daughter of such husband of the female; SECONDLY, in the husband's brother or husband's brother's son of such female. The learned trial Judge found it proved that the appellant was the father's brother's son 0f the vendors and also a co -sharer in the khata above -mentioned and that he had, therefore, a right of pre -emption under Thirdly and Fourthly of clause (b) of sub -section (1) of section 15. Accordingly, issue No. 2 was decided in favour of the appellant and issue No. 5 -A against respondents Nos. 1 to 10. No arguments were addressed to him on issue No. 1 which was decided in the negative. * * *this view of the matter, issue No. 4 was held not to arise. Under issue No. 5 the finding was that respondents Nos. 1 to 10 were entitled to an amount of Rs. 2,400/ - on account of expenses incidental to the sale, in case of the suit being decreed. It was in view of these findings that the learned trial Judge passed a decree in favour of the appellant for possession of the land in dispute by pre -emption on payment of Rs. 22,400/ -. The parties were left to bear their own costs but a direction was given that if the appellant did not pay the amount of Rs. 22,400/ - on or before the 15th of June, 1966, his suit would stand dismissed with costs.;