The evidence of the defendant-appellant being a tenant on the suit land and the mandatory nature of the provisions of Order 20 Rule 14 of the Civil Procedure Code, 1908 regarding the deposit of pre-emption money influenced the court's decision.

JUDGMENT

Alka Sarin, J. - The present regular second appeal has been filed by the defendant-appellant challenging the judgment and decree dated 24.01.1989 passed by the lower Appellate Court decreeing the suit of the plaintiffrespondent while reversing the judgment and decree dated 29.08.1988 passed by the Trial Court.

2. The brief facts relevant to the present lis are that one Smt. Nirmala Devi was co-owner to the extent of 1/3 share in land measuring 53 kanals - 7 marlas i.e. 17 kanals - 16 marlas situated in village Jogna Khera, Tehsil Thanesar. Vide registered sale deed dated 15.07.1985 she sold the said land to the defendant-appellant for a sale consideration of Rs.45,000/-.

3. On 13.06.1986, a suit was filed by the plaintiff-respondent for possession by way of pre-emption on the ground that he was a co-sharer in the land and hence had a superior right to pre-empt the sale in question.

4. The suit was contested by the defendant-appellant. Defendant No.2 in the suit i.e. Smt. Nirmala Devi, the vendor, was given up as being an unnecessary party to the suit. It was averred in the written statement that the defendant-appellant was a tenant under defendant No.2 i.e Smt. Nirmala Devi, the vendor, on the suit land at the time of sale on payment of 1/3 batai and that the sale in his favour was not pre-emptible. It was further averred that an amount of Rs.45,000/- had been paid as consideration and registered sale deed was executed in favour of the defendant-appellant. A replication was filed reiterating the stand taken in the plaint.

5. On the pleadings of the parties, the following issues were framed :

'1. Whether the plaintiff has superior right to preempt the sale in question ? OPP

2. Whether the sale price of the land of Rs.45,000/- was actually fixed and paid ? OPD

3. If issue no.2 is not proved what was the market value of the suit land ? OPD

4. Whether the defendant no.1 is entitled for expenses of registration and stamp charges ? OPD

5. Whether defendant no.1 was tenant over the suit land at the time of its sale ? OPD

6. Whether the suit is not maintainable in the present form ? OPD

7. Whether plaintiff is estopped by his own act and conduct to bring the present suit ? OPD

8. Whether 1/5th preemption money was not deposited by the plaintiff in time ? OPD

9. Relief.'

6. Vide judgement and decree dated 29.08.1988 the Trial Court, relying on Ex.DW9/1 i.e. Khasra Girdawari for Kharif 1983 to Rabi 1984 wherein the defendant-appellant was shown in cultivating possession of the suit land as tenant under defendant No.2 i.e. Smt. Nirmala Devi, the vendor, and Sant Kumar and also relying on Ex.D2 i.e. the agreement to sell which contained a recital that the defendant-appellant was a tenant over the suit land and further relying on Ex.D1 i.e. the sale deed in question which also had a recital that the defendant-appellant was a tenant on the suit land prior to and on the date of the sale, dismissed the suit holding the sale to be not pre-emptible as per the provisions of Section 17-A of the Punjab Security of Land Tenures Act, 1953 (hereinafter referred to as the 'Land Tenures Act'). Aggrieved by the judgment and decree passed by the Trial Court, the plaintiff-respondent preferred an appeal which was allowed by the lower Appellate Court vide judgment and decree dated 24.01.1989 holding therein that since the change of entry in the Khasra Girdawari was made without notice hence the said document could not be relied upon. The lower Appellate Court decreed the suit of the plaintiff-respondent.

7. Aggrieved by the judgment and decree dated 24.01.1989 passed by the lower Appellate Court the present regular second appeal has been preferred by the defendant-appellant.

8. Before adverting to the arguments raised by the learned counsel, a few relevant facts, which have not been pointed out by the counsel, also need to be adverted to. At the time of filing of the suit i.e. 13.06.1986 when the suit was checked and registered and notice was issued to the defenda