The main legal point established in the judgment is that a tenant is entitled to pre-empt the entire sold land if proven to be a tenant, as supported by the interpretation of the word 'holds' under tenancy and the precedent set by the Hon'ble Supreme Court.

Vinod K.Sharma, J.

1 CM No. 2347-C of 2010

C.M. allowed, substantial questions of law are taken on record.

RSA No,32 of 1991

This regular second appeal, by plaintiff/appellants, is directed against the judgment and decree dated 23.7.1990, vide which the suit filed by the plaintiffs to pre-empt the sale made by Prem Inder Singh and Naresh Inder Singh, sons of Ajinder Singh, was partly allowed.

2 The suit of the appellants, was decreed for possession of half share of the property sold by way of pre-emption being the tenants.

3 The facts in brief read as under :-

Manjit Singh Buttalla filed a suit for pre-emption, to pre-empt the sale as a relation of the vendors, whereas appellants filed a suit as rival pre-emptors. Both the suits were taken and disposed of together. While the suit filed by Manjit Singh Buttalla was dismissed, the suit filed by the plaintiff/appellants was partly allowed. The case set up by the plaintiff/appellants was, that the property sold by the defendants was under the tenancy of one Telu which was inherited by his two sons Phula and Harphul. It was the case of the plaintiffs that Phula was cultivating the land as Harphul was working in the defence forces. The plaintiff/appellants asserted their right of pre-emption being the legal heirs of Phula i.e. widow and sons. Vendors had sold 38 kanals 5 marlas of land for total sale consideration of Rs. 48,000/- (Rupees forty eight thousand only) on 22.8.1978. It was pleaded by the plaintiff/appellants that, in fact, property was sold only for Rs. 30,000/- (Rupees thirty thousand only), and sale consideration of Rs. 48,000/- (Rupees forty eight thousand only) was fictitious, to defeat the rights of the prospective pre-emptors.

4 The suit was contested by defendant/respondent on various grounds. However, the factum of sale for total consideration of Rs. 48,000/- (Rupees forty eight thousand only) was admitted by plaintiff/appellants, and was also said to be in good faith. It was also pleaded, that the plaintiff/appellants had not deposited l/5th of the sale consideration as directed by the Court. That the suit was bad for partial pre-emption. The defendant/respondent also claimed stamp and registration charges besides improvement charges.

5 On the pleadings of the parties, the learned trial Court framed the following issues :-

"1. Whether the plaintiff has got a superior right of pre-emption ? OPP

2. Whether the rival pre-emptors have got a superior right of pre- emption ? OPD (defdt. 4 to 7)

3. Whether the plaint and power of attorney of suit filed by Manjit Singh, plaintiff does not bear his signatures, if so, its effect ? OPD (4 to 7)

4. Whether Manjit Singh, plaintiff is only a figure head and the suit has been got filed by the vendee-defendant Rattan Singh through his counsel Shri Sat Pal Chopra Advocate ? OPD (4 to 7)

5. Whether the suit of the plaintiff Manjit Singh and rival pre- emptors are within limitation ? OPP

6. Whether the sale price was fixed in good faith or actually paid ? OPD (3)

7. If issue No. 6 is not proved, what was the market value of the suit land in dispute at the time of sale ? OPP Parties.

8. Whether the court fee has been correctly affixed ? OPD (4 to 7)

9. Whether the amount of l/5th pre-emption monev has not been deposited in time ? OPD (i)

10. Whether the suit of the rival pre-emptors is for partial pre- emption ? OPD (i)

11. Relief."

6 We are not concerned with issues No. 1,3,4 and 5. as they relate to the suit filed by Manjit Singh, which has attained finality.

7 Learned trial Court on issue No. 2, on appreciation of evidence, held, that the plaintiff/appellants had a superior right of preemption.

8 On issue No. 6, it was held that sale price was fixed in good faith and actually paid.

9 Issue No. 7, therefore, was decided against the defendants in view of the findings on issue No. 6.

10 On issue No. 8. it was held that the court fee was correctly paid. The learned trial Court also held, that 1 /5th pre-emption money stood d