JUDGMENT
S.K. Jain, J.
1. Jaspal Singh owner 20 Kanals of agricultural land fully described in the plaint. Vide registered patanama dated 193.1979, Ex. D-1, he inducted one, Mohinder Singh, as tenant on the whole of the said land. Jaspal Singh thereafter on 16.1.1981 sold 12 kanals out of abovesaid 20 kanals in favour of Mohinder Singh vide registered sale deed Ex. P1. He sold rest of the 8 kanals of land in favour of defendant Nos. 2 to 5 vide the same registered sale deed i.e. Ex. P-1. Smt. Bhupinder Kaur pleading to be the sister of the vendor and co-sharer in the land pre-empted the sale by filing Civil Suit No. 541 of 1981, instituted on December 9, 1981. Defendant Nos. 2 to 6 were proceeded against exparte. Only Mohinder Singh contested the suit. The learned trial Court vide its judgment and decree dated 19.5.1984 found that Mohinder Singh was tenant on 12 kanals out of 20 kanals of the suit land and, therefore, that part of the sale was not pre-emptible and decreed the suit of the plaintiff to the extent of 8 kanals of land.
2. Feeling aggrieve Bhupinder Kaur filed Civil appeal No. 145 /13 of 1984 qua the judgment and decree of the trial Court to the extent it had dismissed the suit qua of 12 kanals, Didar Singh, defendant No. 2 filed cross-appeal which was treated as cross-objections. On page 85 of the Lower Appellate Court, following statement find place :-
“Statement of counsel for the defendant-vendees W/o of Mohinder Singh and Didar Singh
…..
The findings of the trial Court are not assailed on any issue.
Sd/-
ADJ, Kurukshetra.
20.11.1984.
R.O. & A.C.
Statement of counsel for the plaintiff-appellant w/o:
The finding of the trial Court is assailed on issue No. 5 and that too to the extent it was decided against the plaintiff. No other findings are assailed.
Sd/-
ADJ, Kurukshetra,
20.11.1984.
R.O. & A.C.
The learned first appellate Court affirmed the finding of the learned trial Court on issue No. 5 vide Us judgment and decree dated 11.9.1986.
3. It is that judgment and decree of the lower Appellate Court which has been impugned in the Regular Second Appeal and which requires my exanimation of its sustainability.
4. I have seen the pleadings of the parties in the suit, evidence adduced by them in the suit and the judgments of both the Courts below.
5. Learned counsel for the appellant has taken me through the sale deed and has vehemently argued that from the. said document it cannot be gathered as to on which particular land Mohinder Singh had been induced as a tenant and, therefore, the finding of the learned trial Court that the sale of 12 kanals of land in favour of Mohinder Singh was not pre-emptible. He being tenant on the said land, was not acceptable. This argument attractive at first sight, is, in my opinion, not tenable on the sound appreciation of Ex.D-1 which was executed as far back as on 19.3.1979.
6. In the sale deed Ex. P-1 it is clearly mentioned that out of 20 kanals of land compromised in khewat Nos. 36 and 92 situated in the area of Chhota Bans, 12 kanals were sold to Mohinder Singh and the remaining 8 kanals to Didar Singh, Joginder Singh, Gurdev Singh and Badh Singh defendants in equal shares for a total sale consideration of Rs. 47750/-.
7. Again, perusal of sale deed Ex. D1 would show that therein it has been clearly recited that the whole of the land was under tenancy of Mohinder Singh who was in its possession at the spot and after the expiry of the lease period, the possession can be taken from him. At the time of execution of the sale deed, whole of the land measuring 20 kanals was under tenancy of Mohinder Singh 12 Kanals of land were sold to him whereas remaining 8 kanals were sold to defendant Nos. 2 to 5 and, therefore, there cannot be any mistaken identify of the land. There can possibly be no quarrel with the law laid down by the Supreme Court in Natha Singh and Ors. v. The Financial Commissioner Taxation, Punjab, 1976 PLJ 293 to the effect that in the absence of payment of rent or in the absence of material to show that there was contract between the tenant and the landowner absolving the latter of the liability to pay rent, it is difficult to uphold the claim of the appellants that they are tenants. But the said ratio is of no avail to the appellants. Here in this case, there is a registered document of the lease Ex.Dl. It was executed on 19.3.1979 and at that time it could not be anticipated that the owner (lessor) will sell the land after two years and in order to ward off the right of pre-emption of the co-sharer, this document would be made use of.
8. The ratio of the judgment rendered by a Single Bench of this Court in Mukat Singh v. Jawala Devi, 1983 PLJ 182, also does not help the appellants. Rather it is mentioned therein that Under Section 4(5) of the Punjab Tenancy Act, the tenancy comes into existence only when a bilateral agreement between the parties is executed. As mentioned earlier, Ex. D-1 is a bilateral agreement of tenancy between the vendor and Didar Singh in this case.
9. There can also be no quarrel with the ratio laid down by a Single Bench of this Court in Tarlok Singh v. Harnam Singh and Anr., 1974 PLJ 316, to the effect that in order to determine whether a person was a tenant over the land, the entries in the column of cultivation and also in the column of rent have to be read together. In that case there was direct conflict between Khasra girdawari entries and jamabandi entries. The Patwari who had prepared the Khasra Girdawari was not examined at the trial and under those peculiar facts and circumstances it was held that if the copies of the Khasra Girdawari were correct, than entries in accordance with the same would have been made in jamabandis. The question of conflict between jamabandi and khasra girdawari entries does not arise in this case. The tenancy came into existence vide registered pattaname Ex D-1.
10. In view of the above discussion, concurrent finding recorded by the two Courts below on issue No. 5 cannot be faulted and is hereby affirmed.
11. Now on to the findings returned on issue No. 1 Learned First Appellate Court has reversed the finding of the learned trial Court on issue No. 1 pertaining to the preferential right of pre-emption of the plaintiff-appellant. In its judgment learned trial Court has stated that in Jamabandi Ex.P3 for the year 1978-79, the plaintiff has been shown as co-sharer in the land in question and the presumption of truth attached to the said jamabandi entries which had not been rebutted. So the plaintiff had superior right to pre-empt the sale. But learned First Appellate Court while reversing the above finding of the learned trial Court has stated that as far the right of co-sharer was concerned the plaintiff had no superior right because four out of five vendees were already co-sharers in the khewat.
12. Learned counsel for the appellant has submitted that although there is no plea in the written statement to the effect that four out of five vendees were cosharers in the joint khewat but if that is so even four of the co-sharers having joined in the sale a strangers with them they will sink to the level of the stranger and they would not defend the suit of the plaintiff-pre-emptor on the ground that they were also co-sharers in the land. In Garib Singh v. Harnam Singh and Ors., 1971 PLJ 579 it is held that a vendee, who associates with himself in the sale, a stranger, cannot resist the claim for preemption on the basis of his own qualifications or status. It is settled law that where the sale is in favour of several persons, it is the status of the lowest of the vendees that has to be taken into account in determining whether the pre-emptor has a preferential right.
13. Besides what has been stated above, neither such plea was taken in the written statement nor any evidence was led by the defendants to substantiate such a plea.
14. In view of the above detailed discussion, the finding recorded by learned Appellate Court on issue No. 1 is set aside and that of trial Court is restored.
15. Consequently, this appeal is allowed. Resultantly the suit of the plaintiff is decreed to the extent of 8 kanals whereas it is dismissed to the extent of 12 kanals of land which is under the tenancy of Didar Singh.
16. In case proportionate decree money is not yet deposited by the pre-emptor it be done now with a period of two months from today.
17. No costs.