The land sold to tenants is exempted from pre-emption under Section 17-A of the Punjab Security of Land Tenures Act, 1953.

J.V.Gupta, J.

1. This is plaintiffs second appeal whose suit for pre-emption was decreed by the trial Court, but dismissed in appeal.

2. Amar Singh sold the suit land measuring 12 kanals 18 marlas, comprised of khasra No. 119/25 measuring 6 kanals 11 marlas and 119/25 measuring 6 kanals 7 marlas by means of registered sale-deed dated 17.6.1972 for a consideration of Rs. 8,500/- in favour of Hukam Chand and Chand Ram, vendees. The plaintiffs filed the suit claiming themselves to be the sons of the vendors. Since the plaintiffs were minors they filed the suit through their mother, Smt. Murti, acting as their next friend.

3. The suit was contested by the vendees on the plea that at the time of the sale in question, they were in possession of the land in dispute as its tenants and therefore, the suit for pre-emption was not maintainable. They also claimed registration and stamp expenses. The trial Court found that the plaintiffs had Superior right of pre-emption, being the sons of the vendors. It was further held that the vendees were entitled to recover Rs. 947/- more as stamp and registration expenses. On the material issue, whether the vendees were tenants on the suit land at the relevant time, or not, it was held that they failed to prove themselves to be the tenants, as alleged. In view of this finding, the plaintiffs suit was decreed on payment of Rs. 9,447/- in all, less the mortgage-money of Rs. 4,000/-. In appeal, only the finding of the trial Court under issue No. 5 was challenged. The learned Additional District Judge found that in view of the lease-deed Ex. D-1, dated 23.7.1970, it was proved that one of the defendant-vendees Hukam Chand was a tenant on Khasra No. 119/25, measuring 6 kanals 11 marlas and not on the other khasra number, that is 119/24 measuring 6 kanals 7 marlas. However according to the learned Additional District Judge, in view of the law laid down in Chandan v. Ram Sarup, 1976 PLJ 115, the entire land sold becomes non-pre-emptible. Consequently, the plaintiffs suit was dismissed. Dissatisfied with the same, the plaintiffs have filed the second appeal in this Court.

4. The only point to be determined in this appeal is, whether the entire land becomes non-pre-emptible, when, as a matter of fact, one of the defendant-vendees has been found to be a tenant in possession of one field only that is 119/25. From a perusal of the judgment, I find that the learned lower Appellate Court wrongly relied upon the same for the said proposition. The ratio of the said judgment is that the land sold to tenants is exempted from pre-emption under Section 17-A of the Punjab Security of Land Tenures Act, 1953. This proposition is not disputed on behalf of the vendee-respondents. In this view of the matter, plaintiffs suit with respect to khasra No. 119/24 measuring 6 kanals 7 marlas over which the vendees have failed to prove to be the tenants, was liable to be decreed.

5. Consequently, the appeal succeeds and is allowed to the extent that the plaintiffs will be entitled to pre-empt the sale with respect of khasra No. 119/24 on payment of the proportionate amount which has been calculated in Court in presence of the learned counsel for the parties, at Rs. 4,724/-. In case the pre-emption amount has not been deposited earlier, the plaintiffs are allowed three months time to deposit the said amount, failing which their suit will stand dismissed. No costs. Appeal allowed.