Judgement

UNTWALIA, J.:- This appeal by special leave arises out of a suit for pre-emption filed by the appellants under Section 15 of the Punjab Pre-emption Act 1913 - hereinafter called - the Pre-emption Act. The suit land is situated in the State of Haryana to which the provisions of the Act aforesaid are still applicable.The land belonged to Smt. Shanti, respondent No. 3. The appellants were the tenants of the disputed land under her. She sold the land to respondents 1 and 2 on the 21st June,1965. The land sold measured 176 kanals 4 marlas. The plaintiffs claimed the right of pre-emption in respect of the agricultural land in suit in accordance with clause Fourthly of Section15 (1) (a) of the Pre-emption Act The suit was resisted by the vender-respondents on several grounds. It was decreed by the trial Court on the 20th June, 1967 in respect of a portion of the land. measuring 157 kanals 2 marlas. The vendees appeal in the First Appellate Court failed on the 20th April, 1968. They succeeded, however, in the High Court of Punjab & Haryana on the basis of the decision of this Court in Bhagwan Das v. Chet Ram. (1971) 2 SCR 640. A learned single Judge of the High Court allowed the second appeal filed by respondents 1 and 2 and dismissed the plaintiffs suit.

2. We may state a few more facts before noting down the points urged on behalf of the appellants. In the appellants suit an order of injunction was made on 11-7-1966 restraining the defendants from dispossessing the plaintiffs from any portion of the suit land. But before the order of injunction was passed respondents 1 and 2 has filed an application before the Revenue Authorities under Section 9 of the Punjab Security of Land Tenures Act, 1953 - hereinafter called the Land Tenures Act - for ejectment of the appellants. An order of eviction was passed by the first authority on 22-5-1967:. that is to say, about a month prior to the passing of the decree by the trial Court. The appellants appeal from that order of the Assistant Collector was dismissed by the Collector on 14-9-l967. The High Court took the view that since the appellants had ceased to be the tenants of the land prior to the passing of the decree of pre-emption by the trial Court they were no longer qualified to get such a decree.

3. Mr. S. C. Agarwal, learned counsel for the appellants made the following submissions :

(1) That the decision of this Court in Bhagwan Das s case (1971) 2 SCR 640 is distiguishable or in any view of the matter requires reconsideration by a larger bench.

(2) That the High Court committed errors of record and law in relying upon the order of eviction without bringing the copy of the order on record.

(3) That the order of eviction was in respect of about 3 standard acres of land only and a decree for pre-emption in any event ought to have been made in respect of the remaining portion of the land measuring about 9 standard acres.

4. Section 15(1) of the Pre-emption Act says:.

"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 ..........Fourthly, in the tenant who holds under tenancy of the vendor the land or property sold or a part thereof; "

Under the general law of pre-emption it is established that the decisive date as regards the right of pre-emptor to pre-empt the sale was the date of the decree. In other words the pre-emptor who claims the right to pre-empt the sale on the date of the sale mustcontinue to possess that right till the date of the decree. If he loses that right before the passing of the decree, decree for pre-emption cannot be granted even though he may have had such right on the date of the suit. In several cases coming up before the Punjab and Haryana High Court a question arose whether the same rule applies to a person who claims to pre-empt the sale under Section 15 (1) (a). Fourthly of the Pre-emption Act. In quite a large number of cases the answer given by the High Court was tha