A suit for pre-emption is not maintainable if the plaintiff is a tenant on any part of the land sold.

D.V.Sehgal, J.

1. Suraj Parkash, respondent No. 2, sold land measuring 127 Kanals 2 Marlas situated in Sadhaura to Shanti Sarup, appellant, through a registered sale-deed dated 29.6.1966 for consideration of Rs. 23825/-. Baldeva, respondent No. 1, filed a suit for possession by pre-emption of land measuring 82 Kanals 13 Marlas, as described in the plaint, out of the land purchased by the appellant, claiming that he had a superior right to pre-empt this land as he was a tenant on the said land. Shanti Sarup appellant contested the suit. He denied the claim of respondent No. 1 and pleaded that he took actual possession of the land after its sale in his favour and that Baldeva was never its tenant. In the alternative, he pleaded that it was the appellant who had inducted respondent No. 1 as his tenant in Khasra Nos. 50/12/3, 50/19, 22 and 54/2,3 after purchase of the land by him. He took another alternative plea to the effect that the suit was bad for partial pre- emption. The learned Sub Judge 2nd Class, Ambala City, dismissed the suit of respondent No. 1, vide judgment and decree dated 9.1.1975. On an appeal filed by respondent No. 1, the learned Additional District Judge, Ambala, set aside the judgment and decree of the trial Court, vide orders dated 24.1.1977, and held that respondent No. 1 had the right to pre-empt land measuring 42 Kanals 6 Marlas comprising in field Nos. 50/9, 50/12/3, 50/19, 50/23, 50/24, 54/2 and 54/3 and granted a decree of pre-emption in his favour on payment of proportionate price of the land and proportionate sale expenses, i.e., Rs. 8098/- and Rs. 546/- respectively. The present appeal is by the vendee- appellant against the judgment and decree of the learned Additional District Judge, dated 24.1.1977.

2. The learned Sub-Judge 2nd Class, Ambala City, had dismissed the suit of respondent No. 1 on the ground that it was for partial pre-emption by returning a finding in the affirmative on issue No. 5 which was to the effect :-

``Whether the suit is bad for partial pre-emption?

The Trial Court held that the Khasra Girdawaris brought on the record showed that, besides the land described in the plaint in respect of which respondent No. 1 sought a decree for pre-emption of sale, he was also a tenant on the land bearing Khasra No. 50/22 which forms part of the land sold by Suraj Parkash vendor-respondent to Shanti Sarup vendee-appellant. The learned Additional District Judge has, however, upset this finding. What has weighed with the learned Additional District Judge is the averment of the appellant in paragraph 3 (a) of the written statement to which reference has already been made above. He has concluded that, since on the appellants own showing respondent No. 1 became a tenant on the land bearing Khasra No. 50/22 after it was purchased by the appellant, no weight could be attached to the evidence brought on the record in the form of Khasra Girdawaris showing that, at the time of the sale which is sought to be pre-empted, respondent No. 1 was a tenant in respect of the land bearing Khasra No. 50/22. The learned Additional District Judge has further observed that no presumption of correctness can be attached to the Khasra Girdawaris.

3 I disagree with the finding recorded by the learned Additional District Judge. The pleadings contained in paragraph 3 (a) of the written statement are to be read as a whole. As against the pleadings of the appellant that respondent No. 1 was not at all a tenant on the land which is the subject- matter of the suit, it has been found as a fact by both the Courts below that respondent No. 1 was a tenant. This discarded not only the first plea of the appellant as contained in paragraph 3 (a) of the written statement to the effect that respondent No. 1 was not a tenant at the time of sale but also did away with his alternative plea that respondent No. 1 was, in fact, inducted as a tenant on a part of the land by the appellant himself after he purchased the land. It is not