CHANDAN SINGH Vs. PHOOL SINGH

JUDGEMENT

(1.) Regular Second Appeal Nos. 969 and 1224 of 1966, are being disposed of by common judgment as the suits out of which these appeals arise, concern the same land which was sold by one Khem Chand to Chandan Singh and others. Land measuring 94 Kanals and 14 Marlas, which was the subject matter of two different suits, was sold on 29th June, 1964, for a consideration of Rs. 3,000/-. Phool Singh and others plaintiffs-respondents in R.S.A. No. 969 of 1966 claimed the superior right of pre-emption on the ground that they were the tenants of Killa No. 18, Rectangle No. 9 and Killa Nos. 19 and 20, Rectangle No. 10, measuring 24 Kanals. This suit was decreed on 10th December, 1964, and they were allowed to pre-empt the entire land. This decree was challenged by Chandan Singh and others in appeal. Hukam Singh appellant in R.S.A. No. 1224 of 1966, filed a suit of pre-empting the land on 18th January, 1965. By that time the previous pre-emptors, namely, Phool Singh and others, had taken the possession of the whole land in pursuance of the decree by the trial Court in suit of Phool Singh and others, on 10th December, 1964. Phool Singh and others, therefore, were impleaded as defendants in the suit filed by Hukam Singh. The controversy before the trial Court in the suit filed by Hukam Singh was as to whether Hukam Singh could get the land pre-empted and get the possession back from Phool Singh and others. The trial Court held that both the sets of plaintiffs had the superior right of pre-emption on account of they being the tenants and they were entitled to half and half. This decree was challenged by Phool Singh and others. The learned first Appellate Court on the basis of a Division Bench decision of this Court in R.S.A. 252 of 1963 (Kartar Singh and others v. Kirpal Singh) decided on 21st May, 1965, cam e to the conclusion that Hukam Singh would be entitled to pre-empt the one-half of land excluding land comprising Killa Nos. 19 and 20 of Rectangle No. 10 as Phool Singh and others, proved themselves to be the tenants of this land.

(2.) It may be observed that in the appeal filed by Chandan Singh and others against Phool Singh and others, the learned first Appellate Court observed that the finding between the parties had become res judicata.

(3.) It has been held by a Division Bench of this Court in Kartar Singh's case that a tenant of the land sold by a vendor to the vendee, is entitled to pre-empt that portion of the land of which he was proved to be the tenant. The suits were not tried by the trial Court keeping in view the principle laid down in this authority and the trial Court passed the decree of half and half in the suit of Hukam Singh. The trial Court also gave no finding in the suit of Hukam Singh as to of which portion of the land he was proved to be the tenant. In view of the Division Bench decision in Kartar Singh's case , Hukam Singh can only pre-empt that portion of the land of which he was the tenant. Admittedly, there is no finding on the record as to of which portion of the land he was proved to be the tenant; whereas regarding Phool Singh and others, a finding has been categorically given and it has not been assailed by the learned counsel for Chandan Singh and others. Phool Singh and others have been proved to be tenants of the land comprising of Killa No. 18, Rectangle No. 9 and Killa Nos. 19 and 20, Rectangle No. 10, but there is no finding as to of which land Hukam Singh was proved to be the tenant. In view of these complications which have arisen, the learned counsel for the parties agree that the only course open is to remand both the cases to the trial Court with the direction to find out as to of which portion of the land in dispute, Hukam Singh is proved to be the tenant and is entitled to pre-empt the same in accordance with law, and to apportion the consideration if he is found to be entitled to pre-empt a portion of the land. As regards Phool Singh and others, it is not disputed that they have been proved to be the tenants of the land comprising in Killa No. 18, Rectangle No. 9 and Killa Nos. 19 and 20, Rectangle No. 10, measuring 24 Kanals, therefore, they will be entitled to pre-empt that land on the payment of pre-emption amount which shall be apportioned by the learned trial Court. If Hukam Singh is found to be a tenant of the remaining land other than the land the tenancy of which has been proved by Phool Singh and others, Hukam Singh's suit shall have to be decreed except the land comprising in Killa No. 18, Rectangle No. 9 and Killa Nos. 19 and 20, Rectangle No. 10 and in case he is proved to be a tenant of a lesser area, in that case his suit shall have to be decreed to that extent only and the remaining land will revert to Chandan Singh and other vendees. In order to avoid complications, both the suits are consolidated and the following issues shall be tried by the trial Court after giving opportunity to the parties to produce evidence :-