The sale of agricultural land by a co-sharer to a non-co-sharer is subject to a right of pre-emption by another co-sharer.

S.S.Dulat, J.

1. The facts giving rise to this Letters Patent Appeal are these : An area of land measuring 7 Bighas 12 Biswas comprised in fields 869/1 and 869/2 in Bhiwani was sold for Rs. 3,000/- by Parkash Chand to Banarsi Dass and five other persons. Within a short time five of the vendees sold their shares to the sixth vendee and two other persons and the subsequent vendees appear to have put up a building on a part of the land. A suit was brought for pre-empting the original sale and the suit was by Dhan Raj who claimed to be a co-sharer in the land and also a relative of the vendor. The suit was resisted and it was said in defence that the land sold was not agricultural land and, therefore, not subject to pre-emption. The plaintiffs right of pre-emption was denied and it was further pleaded that the vendees had made certain improvements consisting of the building set up on the land and were entitled to compensation on that account.

2. The trial Court found that the price of the land Rs. 3,000/- was actually paid and that the plaintiff had a right of pre-emption as the land sold was agricultural land and he was a co-sharer in the land and also related to the original vendor. The Court then found that there was no satisfactory evidence to prove the vendees claim that Rs. 27,000/- or thereabout had been spent on improvements, and on these findings the Court decreed the suit permitting the vendees, however, to remove the material of the building constructed on the land. Against that decree the vendees appealed and the learned Senior Subordinate Judge, who heard the appeal, found that what had been sold was not a share and that the vendor had sold the whole of the two fields - 869/1 and 869/2 and the plaintiff could not, therefore, claim pre-emption on the ground of being a co-sharer in the land. The second ground being the plaintiffs relationship with the vendor was negatived because of an amendment of the Punjab Pre-emption Act and, in the result, the appeal was allowed and the plaintiffs suit dismissed but the parties left to their own costs in both the Courts. The plaintiff then filed a second appeal in the Court. It was heard by Mehar Singh, J., and he found it necessary to obtain a finding from the first appellate Court whether the land sold was agricultural land or not and the issue in that connection was, therefore, remanded to that Court. No further evidence was heard and the first appellate Court returned a finding that the land in question was not agricultural land within the meaning of the Pre-emption Act. The case was then argued before Mehar Singh, J. and he told that the finding of the learned Senior Subordinate Judge concerning the nature of the land was contrary to law, and that the land sold was agricultural land as defined in the Pre-emption Act. He then considered the second question, whether the sale was of a share, and found that the plaintiff was a co-sharer in the land and the vendor had wrongly stated that the entire land sold was his exclusive property and on this finding the learned Judge held that the plaintiffs as a co-sharer was entitled to claim pre-emption. Another argument was then raised before the learned Judge and it was that the land sold was waste land and had been reclaimed by the vendees and it was consequently not subject to a right of pre-emption. The reclamation relied upon was the construction of a building on the land to house a factory. The learned Judge negatived that submission holding that the construction of a building was not `reclamation within the meaning of the Punjab Pre-emption Act. On the question of improvements it was urged that about Rs. 23,000/- had been spent on the building by the vendees and they should be compensated for it, but the learned Judge found that there was no clear evidence on this point and the vendees were not entitled to such compensation. In the result, Mehar Singh, J., allowed the appeal, set aside the decree of the lower appellate Court