JUDGMENT

PUNCHHI, J.:- This appeal directed against the Judgement and order of learned single Judge of the Punjab and Haryana High Court dated Feburary 1, 1983, passed in Regular Second Appeal No. 1611 of 1973, raises two questions of importance, on the true interpretation of clause Fourthly in S.15(1)(a) of the Punjab Pre-emption Act, 1913 as applicable to the State of Haryana being:

(i) whether an agricultural tenant inducted by the usufructuary mortage has a right of pre-emption over the sale made by the mortgagor - vendor and

(ii) whether an agricultural tenant holding under tenancy of the vendor a part of the sold land is entitled to pre-empt the entire sale

2. Following are the facts as gathered from one or the other Judgement of the three Courts below:-

Some land including 50 Kanals 6 Marlas of land in Khasra numbers 294/9 (9-12), 1 (6-16), 2(3-2 ), 10 (7-8), 12 (8-0) and 13(8-0) situated in village Bhattukalan, Tehsil Fatehabad, District Hissar was owned by one Mool Chand. As per revenue records adduced in evidence before the learned trial Judge, the land stood tenanted even prior to the year 1946 and was in the year 1950 with one Net Ram Gosain. In 1951, Mool Chand died and estate and mutated in favour of his widow and two sons, one of whom was Mitter Sen and in whose share the above land fell. Mitter Sen mortgaged six Khasra numbers bearing 294/9 (9-12), from his inherited land on 16-12-1951 in favour of Amin Chand for Rupees 2400/- and mutation No. 1548 in that regard was sanctioned and recorded in the revenue papers. The tenancy however was not affected. Under the tenancy laws, as applicable to Haryana, the agricultural year commences from 15th June, whereafter time arrives to sow the Kharif Crop. At the time of the crop inspection of Kharif 1953, done on maturity of crops between October to December as per departmental instructions. Ratna Ram the father of the present appellants herein was found to be the tenant of the mortgaged as also non-mortgaged land of Mitter Sen on payment of one-third produce, and was recorded as such. The records are silent however as to whether Ratna was inducted as a tenant by Mitter Sen, owner of the land or Amin Chand, mortgagee. Be that as it may, the cultivation of the landby Ratna, father of the appellant continued till his death, wherafter the appellant were substituted as tenants by inheritance. Revenue records of intervening years kept showing the appellants or their father, as the case may be, sometimes as tenants under the owner, Mitter Sen and sometimes under Amin Chand, the mortgagee. While so, Mitter Sen, owner-mort-gagor on 6-5-1966 remortgaged the disputed land with possession to the same Amin Chand for Rs. 1500/- by a Registered Mortgage Deed. Fifteen days later, on 21-5-1966. He redeemed the former mortgage of 16-12-1951. The appellants remained unaffected by these transfers. Mutation for the subsequent mortgage dated 6-5-1966 was sanctioned 21-7-1966.

3. On 4-3-1968, Mitter Sen sold the entire 50 Kanals 6 Marlas of land for a total consideration of Rs. 10,000/- to the respondents. In the sale, a provision was made in letting the vendees keep the sum due for redeeming the existing mortgage. The appellants sought pre-emption of the sale in its entirety. The trial Court granted them a decree for pre-emption in respect of the non-mortgaged Khasra No. 294/9 (9 Kanals and 12 Marlas) only on the payment of proportionate price of Rs. 2122.30 paise and dismissed the suit with regard to the mortgaged land, now in dispute.

4. The appellants as well as the respondents filed cross appeals before the District Judge, Hissar who allowed the appeal of the pre-emptor-appellants granting them a premption decree and dismissed the appeal of the respondents regarding the other part, in which the appellants had been successful qua one Khasra number the trial Judge. The respondents regular second appeal before the High Court was allowed and the Judgement and decree of the trial Court was restore