JUDGMENT :

Pankaj Jain, J. (Oral)

Plaintiffs are in second appeal.

2. For convenience and to avoid confusion, the parties hereinafter are referred to by their original position in the suit i.e. appellants as plaintiffs and respondents as defendants.

3. Plaintiffs filed suit seeking possession by way of pre-emption asserting their superior right to pre-empt sale deed dated 05.06.2003 as tenants over the suit property. As per the plaintiffs, Jaswant Singh, their grandfather, a gair marusi tenant, was in cultivating possession over the suit property. During his lifetime, Jaswant Singh executed a registered Will dated 15.07.1999 in favour of the plaintiffs. On death of Jaswant Singh, the plaintiffs inherited his estate and came in cultivating possession over the suit property as tenants. The plaintiffs claimed that sale deed has been executed by the owners in favour of defendants No.1 to 3 without there being any prior notice to the plaintiffs as required under Section 19 of the Punjab Preemption Act, 1913. Thus, they are entitled to pre-empt the sale deed.

4. Suit was contested by defendants No.1 to 3 by filing joint written statement. They denied that there was 'landlord-tenant relationship' between plaintiff and defendants No.4 to 6. Execution of Will dated 15.7.1999 by Jaswant Singh, was also denied. Defendants No.1 to 3 claimed to have purchased land by way of registered sale deed for a valuable consideration.

5. Defendants No.4 to 6, the owners of the suit property, also denied relationship of landlord-tenant with Jaswant Singh grandfather of the plaintiffs. They denied tenancy in possession of Jaswant Singh over the suit property.

6. On the basis of the pleadings of the parties, Court of the First Instance framed the following issues :

"1. Whether the plaintiffs are in continuous possession of the suit property being tenant and have superior right of preemption on the grounds mentioned in Para No.5 of the plaint? OPP

2. Whether the sale deed dated 05.06.2003 is liable to be set aside? OPP

3. If issue No.1 and 2 are proved, whether the plaintiffs are entitled for decree of possession by way of pre-emption over suit property and permanent injunction on the grounds mentioned in the plaint? OPP

4. Whether the suit is not maintainable? OPD

5. Whether the plaintiffs have no cause of action and locus standi to file of the plaintiff suit? OPD

6. Whether the suit of the plaintiff is not proper for the purpose of court fees and jurisdiction? OPD

7. Whether defendant No.1 to 3 are owners in possession and the plaintiffs never in possession of the suit property under defendants No.4 to 6? OPD

8. Relief."

7. Court of the First Instance answered issue No.1 in favour of the plaintiffs, holding that they are in continuous possession of the suit property being tenants and have superior right to pre-empt the sale deed.

8. Issue No.2 also was answered in favour of the plaintiffs. The Court of the First Instance thus decreed the suit granting decree of preemption in favour of the plaintiffs qua the suit land.

9. In appeal preferred by defendants No.1 to 3, Lower Appellate Court though maintained the finding on Issue No.1 in favour of the plaintiffs, however, reversed the findings recorded by the Trial Court on Issues No.2 to 4 and dismissed the suit being bad for partial pre-emption.

10. Counsel for the appellants has assailed the findings recorded by the Lower Appellate Court. It has been contended that the findings recorded by the Lower Appellate Court to the effect that the suit has been filed qua part of land measuring 4 Bigha 19 Biswas and not qua the entire land, is contrary to the mandate of law. The plaintiffs are tenants in possession to the extent of 4 Bigha 19 Biswas and not entire land. Thus, the Lower Appellate Court ought not have dismissed the suit filed by the plaintiffs. Reliance is being placed upon ratio of law laid down in the case of Ajaib Singh vs. Pritam Singh, 1998(1) RCR (Civil) 738, Smt. Maya Devi and others vs. Rattan Singh and another