A pre-emptor, who obtains a pre-emption decree, cannot evict the vendee tenant in execution of the decree for pre-emption, if the vendee tenant was in possession of the property prior to the purchase, as the tenancy rights of the vendee tenant are extinguished upon the purchase of the property.

S. N. MODI, J.

( 1 ) THIS civil execution first appeal is directed against an order of the Additional district Judge No. 1, Jaipur City dated 10-9-1976 dismissing certain objections raised by the judgment-debtor appellants in execution of a decree.

( 2 ) THE dispute relates to A house which was admittedly owned by Gendi Lal, roop Chand, Babu Lal, Padam Chand, Bhoj Chand and Kamal Chand. The owners of the house first let out the house to Tulsidas and his son Shobhrajmal on rent and subsequently sold the same to them for Rs. 17,000 vide registered sale deed dated 31st December, 1969, After about ten months from the date of the sale, the respondent Mst. Kamla Devi filed a suit against the purchasers and sellers claiming possession of the suit house on the ground of preferential right of pre-emption under the Rajas-than Pre-emption Act, 1966. During the pendency of the suit Tulsi Das died and his legal representatives, who are appellants before me, were impleaded. The suit was decreed and a decree for pre-emption was passed in favour of the plaintiff respondent Mst. Kamla Devi on payment of certain amount to the vendee appellants. It is not in dispute that the plaintiff-respondent deposited the amount as directed in the decree. The plaintiff-respondent then moved an execution petition to execute the decree and obtain actual vacant possession of the said house. The appellants contested the execution petition on the ground inter alia that since the suit house was in occupation of Tulsidas and Shobhraj Mal as tenants prior to its purchase by them, the decree-holder was not entitled to evict the appellants and obtain actual physical possession of the suit house. The learned Additional District judge rejected this contention holding that the relationship oi landlord and tenant which once existed between Gendi Lal and others on the one hand and the tenants Tulsi Das and Shobhraj Mal on the other came to an end when the tenants purchased the suit house from their land- lords. Dissatisfied with the said order, the judgment-debtor appellants have preferred this appeal.

( 3 ) THE important question that arises for consideration in this appeal is that if a tenant in possession of the property, purchases that property and a successful pre-emptor obtains a pre-emption decree in regard to that purchase, can the pre-emptor decree-holder evict the vendee tenant in execution of the decree for pre-emption?

( 4 ) IT is contended by the learned counsel for the appellants that a pre-emptor when he secures a pre-emption decree, he merely steps into the shoes of the vendee. It is not a resale of the property. The result of a successful suit for preemption is that the name of the vendee is erased from the sale deed and that of the successful pre-emptor is inserted in its place. It is further contended that if instead of the tenant, the pre-emptor had purchased the property by private contract from the landlord, he could not in law have evicted the tenant in possession of the property. The learned counsel in these circumstances contends that there is no reason why the appellants merely by reason of their purchase of the demised property lose their tenancy rights if the purchase does not survive on account of a pre-emption decree passed against them. The above submission of the learned counsel for the appellants are supported by a single Bench decision of the Delhi High Court in Ram Kishan Das v. Zahira, (1968) 70 Pun LR (D) 11. With due respect, I am unable to agree with the view taken by the learned Judge in the above cited case.

( 5 ) SECTION 111 of the Transfer of Property Act in Clause (d) deals with merger. It states that a lease of immovable property determines in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right. Their Lordships of the Supreme court in Shah Mathuradas Maganlal and Co. v. Nagappa Shankarappa Malaga, AIR 1976 SC 1565 observed:-" for