LODHA, C.J. - (1.) THESE three appeals can be conveniently disposed of by a single order as the only question involved in all the three appeals is the same namely, whether the right of preemption accrues on the sale of Khatedari rights in agricultural land under the provisions of the Rajasthan Preemption Act, 1966 (hereinafter to be referred to as 'the Act of 1966') The suits instituted by the preemptors in all the three case were dismissed by the trial court. When First Appeal No. 104 of 1970 came up for hearing before the learned Single Judge, he noticed that there were two Single Bench decisions of this court taking conflicting views in the matter. In Prabhu Dayal v. Mahadeo Math 1972 WLN 455, It was held by Gattani J., as he then was, that a suit for preemption In respect of sale of Khatedari rights is maintainable. However, in civil revision petition No. 53 of 1959 Kishan Gopal v. Shivjiram and Ors., decided on January 20, 1969, Jagat Narayan J. as he then was dismissed summarily the appeal filed by the plaintiff preemptor on the ground that there can be no preemption of tenancy rights under the Rajasthan Preemption Act of 1966. S.N. Modi J. before whom these appeals came up for hearing, having noticed the aforesaid conflict of views, has referred this case to a larger Bench. The two other appeals, namely, First Appeal No. 96 of 1970 and First Appeal No. 14 of 1971, have, also been connected with First Appeal No. 104 of 1970.
(2.) SINCE the point arising in all the three cases is purely one of law we do not consider it necessary, to narrate the facts(SIC) each case -Suffice it to say that the plaintiff in all the three cases, instituted -suits for preemption In respect of transfer of Khatedari rights in agricultural land. The learned Additional District Judge, Sri Ganganagar, upheld the contention raised on behalf of the defendants that no suit for preemption can lie in respect of sale of Khatedari right in agricultural land and dismissed the suits. For a correct appraisal of, the, contentions raised by the learned Counsel for the parties, it is necessary to notice the relevant provisions of the Act of 1966. Section 2(iv) Immovable property meant land of house property wherever situate in the State; Section 2(v). - 'Land' includes things attached to the earth or permanently fastened to anything attached to the earth, when sold or foreclosed along with the land to which they are attached but not otherwise; Section 2(vii). - 'Sale' means a transfer of ownership in Immovable property in exchange for a price paid or promised or partly promised; Section 2(viii). - 'transfer' means a sale, or a mortgage where the final decree for foreclosure in respect thereof has been passed. Section 3 - 'Right of preemption' defined the 'right of preemption' is the right accruing under Section 4 of this Act, upon and to be substituted as the transferee thereof in place of and in preference to the original transferee and preemption' means a person having a right of preemption. Section 4. - Cases in which right of preemption accrues: subject to the provisions contained in Section 5, the right of preemption shall, upon the transfer of any Immovable property, accrue to the persons mentioned in Section 6 Section 5 Cases in which right of preemption does not accrue: (1) The right of preemption shall not accrue (a) upon the transfer or a shop, karta, sarai, musafirkhana, dharamshala, temple, mosque or other similar buildings; or (b) upon a sale (i) by or to the Central or the State Government. (ii) by or to any local authority, or (iii) to any company under the provisions of part VII of the Rajasthan Land Acquisition Act, 1953 Rajasthan Act 24 of (1953), or (iv) for the purpose of manufacturing industry, or N (c) on a transfer to any of the persons mentioned in Section 6 to any person who has an equal or inferior right of preemption; or (d) In the case of a transfer by joint owners, to a part to such transfer; or (e) in respect of (i) any sale in execution of a decree of a civil or revenue court, or (ii) any sale in default of payment of land revenue or of any sum legally recoverable as an arrear of land revenue: Provided that, in the case contemplated by Sub -clause (iv) of Clause (b) the right of preemption that accrue, subject to the other provisions of this Act, on the expiry of one year from the date of the registration of the tale deed, in case such sale is made without a registered deed from the date of taking physical possession of the immovable property sale if such property has not been used in good faith for the purpose for which it was ostensibly purchased. (2) Nothing in this Act shall. (a) effect the provisions of Rule 88 of Order XXI of the Code of Civil Procedure 1908 (Central Act 5 of 1908) or the provisions of Rajasthan Tenancy Act, 1955 Rajasthan Act 3 of 1955) or of the Rajasthan Land Revenue Act, 1956 (Raj. Act 15 of 1955), or of the Rajasthan Colonisation Act 1964 (Rajasthan Act 27 of 1954), or (b) confer on any person the right of preemption to respect of any immovable property which such person is not entitled to purchase under any law for the time being in force. Section 6. Person to whom right of preemption 'accrues -(1) Subject to the other provisions of this Act, the right of preemption in respect of any immovable property transferred shall accrue to, and vest in, the following classes of persons, namely. (1) co -sharers of or partners in the property transferred, (ii) owners of other immovable property with a staircase or an entrance or other right or amenity common to such other property and the property transferred. (2) Among the different classes of persons mentioned in Sub -section (1), persons of the first class will exclude those of the other classes persons of the second class will exclude those of the third class (3) Among persons of the same class claiming the right of preemption, the person nearer in relationship to the person whose property is transferred will exclude the more remote. (4) Where two or more persons of the same class, claiming the right of preemption are equally entitled thereto in all respects, the court may, - (a) determine, by drawing lots, the person in whose favour preemption may be decreed, or (b) after taking into consideration the circumstances of the case and the respective requirements of all such persons: (i) determine which of such persons may be allowed to exercise the right in preference to rest, or (ii) direct the division of the property equally among all such persons, each of them paying an equal share of the consideration for the transfer. A glance at the above provisions of the Act of 1966 makes it clear that in order that a preemptor may enforce the right of preemption, there must be a transfer of immovable property. In other word, in order to give rise to preemption, it is necessary that there must be either sale or a mortgage where the final decree for foreclosure in respect thereof has been passed. In the present case, we are required to deal with a question of sale and therefore, we must address ourselves to the definition of the term 'sale'. 'sale' has been defined to mean a transfer of ownership in immovable property in exchange for a price paid or promised.
(3.) IT has not been disputed before us that the land In question falls within the ambit of the term 'immovable property'. It is also beyond dispute that Khatedari rights in respect of the land in dispute have been transferred and the right of the plaintiffs to preempt as coshares has also not been called into question. The point that has been canvassed before us, is whether transfer of Khatedari rights can be said to be transfer of ownership in immovable property. Mr. Lekh Raj Mehta, has urged that there need not be a transfer of absolute ownership. Even transfer of limited ownership gives rise to the right of preemption. He endeavoured to show by reference to the various provisions of the Rajasthan Tenancy Act, 1955 (No. 3 of 1955) (hereinafter to be referred to as 'the Act of 1955') that Khatedari rights have all the necessary attributes of ownership, though there are certain restrictions placed on the rights of Khatedars His contention, in short, is the for giving rise to the right of pre -emption, it is 'sufficient if there is transfer of even a limited ownership on the other hand, Mr. M.M. Singhvi learned Counsel for the respondents, has contended that the right of preemption is a weak right and unless. It can be clearly spelled out from the provisions of the statute, it cannot be given effect to. His submission is that Khatedari rights are pure and simple tenancy rights. A Khatedar is not an owner of the land but he is only a tenant with certain privileges and therefore transferor Khatedari rights cannot give rise to right of pre -emption, as in case of such a transfer, it cannot be laid that there has been a transfer of ownership in immovable property.;