The right of pre-emption under the amended Section 5 of the Punjab Pre-emption Act, 1913, only ceases to exist in respect of such sale of agricultural land which was waste and had been reclaimed by the vendee for agricultural purposes.

Shamsher Bahadur, J.

1. This judgment will dispose of three Letters Patent appeals, L.P. As Nos. 122 to 124 of 1963, arising out of three pre-emption suits in respect of three separate sales, one on 21st of February, 1958 and two on 9th of April, 1958, by Nabh Ram the fourth respondent, in favour of Sain Dass (L.P.A. No. 122 of 1963) Human Woollen Rain Mills L.P.A. 123 of 1963) and Damodar Dass and others L.P.A. 124 of 1963). It is common ground that in all these three plots measuring 4512, 4526 and 4584 yards a growing orchard was cut down and the trees uprooted and the land levelled for sale in plots for industrial purposes. Three separate suits were filed for pre-emption on 7th of April, 1959, by Tek Chand and his brother claiming as the nephews (brothers sons) of the vendor.

2. In the three suits which came to be consolidated, the pleas taken in the written statement of the defendant-vendees were that the property sold did not constitute land to enable the plaintiffs to file a suit for pre-emption on ground of relationship. It was not denied that the land had originally been an orchard and the trees had been cut down. It was, however, pleaded that a sum of about one lakh had been spent on building a "splendid karkhana" on it. After the written statements had been filed, an amendment was brought by Punjab Act No. 10 of 1960 in the Punjab Pre-emption Act, 1913 (hereinafter called the Act) as a result of which clause (b) of Section 5 of the Act reads as follows :-

"No right of pre-remption shall exist in respect of - (a) x x x x x

(b) the sale of agricultural land being waste land reclaimed by the vendee, Explanation : For the purposes of this section the expression "waste land" means land recorded as banjar or any kind in revenue records and such ghair mumkin lands as are reclaimable." Whereas the amended Section 15 of the Act vests the right of Pre-emption in respect of agricultural land and village immovable property in the brothers son of the vendor the right of pre-emption in respect of urban immovable property only vests in the tenant who holds under tenancy of the vendor the property sold or a part thereof."

3. In the written statements originally filed by the vendees; the right of the pre-emptors was sought to be defeated on the ground that the property sold did not fall in the definition of agricultural land which alone could be pre-empted by a brothers son.

4. After the amendment of the Act, the vendees promptly changed the ground of challenge and submitted an application that the suit of the plaintiffs was not maintainable as the property sold constituted ghair mumkin land which had been reclaimed by the vendees after the sale. In consequence, a new issue was framed in the following words :-

"Whether the land in dispute was ghair mumkin (waste) land at the time of sale and is it covered by the provisions of Act 10 of 1960" ?

The learned trial Judge having answered this issue in favour of the defendants the suit was dismissed on 10th March, 1960, it having been held that the land was ghair mumkin according to the revenue entries and had been reclaimed by the vendees. As would be apparent, there are two wings of this issue; first whether the disputed land was ghair mumkin and the second, whether it had been reclaimed ?

5. The lower appellate Court, before whom appeals were preferred by the pre-emptors in all the three cases, affirmed the findings of the trial Judge that the land was ghair mumkin or waste, but having taken a different view about the actual reclamation done by the vendees the appeals were allowed and the suits remanded for trial on merits by the Subordinate Judge, Amritsar.

6. The lower appellate Court affirmed that the trees of the garden which had been in existence since 1947 had been cut in the year 1955-56, and the pits created in the land on account of the uprooting of the fruit trees had been filed up for utilising the land for construction purposes. Though some vegetables, flowers and tr