1990 PLP 1178 (SCMR)

SAAD SAOOD JAN, J.‑‑‑By a registered sale‑deed the petitioner alongwith respondents Nos.3 to 6 purchased about 84 kanals and 6 marlas of agricultural land. In the sale‑decd the share of the petitioners was stated to be one‑half and the share of respondents Nos.3 to 6 was described to be the other half. The sale gave rise to two pre‑emption suits; one filed by respondents Nos.1 and 2 and the other brought by respondent No.7. The suits were defended by the petitioners and respondents Nos.3 to

6. The case of the petitioners was that they where tenants in the land in dispute and as such they had a better right to retain the land. Before the trial Court it was not disputed that at the time of the sale, the petitioners were cultivating the land as tenants. However, it was found that respondents Nos.3 to 6 were strangers. The petitioners' defence of being tenants was rejected by the trial Court on the ground that by joining respondents Nos.3 to 6 in the sale they had relegated themselves to the status of non‑tenants.

2. The trial Court found that both sets of pre‑emptors were collaterals of the vendors but that respondents Nos. 1 and 2 were more closely related to him than respondent No.7; accordingly, it decreed the suit of respondents Nos.1 and 2 and directed them to deposit the purchase money by a specified date. It also directed that in case they failed to comply with this direction their suit would stand dismissed and that of respondent No.7 would be decreed. However, respondents Nos.1 and 2 did deposit the purchase money within the specified time. Respondent No.7 has now completely dropped out of the proceedings.

3. The petitioners alone filed an appeal from the judgment and decree of the trial Court before the Additional District Judge, Gujrat. They again agitated the plea that being tenants in the land in dispute they had a better right than respondents Nos.1 and 2 to acquire the land. The learned Additional District Judge rejected their contention on the same ground which had prevailed with the trial Court, that is, by joining non‑tenants with them in the sale they had sunk down to the position of non‑tenants. From the judgment of the Additional District Judge tire petitioners preferred a revision petition before the High Court but it failed. They now seek leave to appeal from this Court. ,

4. On support of this petition it is contended that in the sale‑deed the shares of the petitioner and of respondents Nos.3 to 6 were specifically mentioned, even though it was not stated therein that they had also separately contributed towards the purchase price, but evidence was led at the trial that both sets of vendors bad separately paid their own parts of the sale price. In the circumstances, the sale deed recorded two separate and distinct transactions. Reliance was also placed on section 46, Transfer of Property Act which states that where immovable property is transferred for consideration by persons having distinct interest therein, the transferors are, in the absence of a contract to the contrary, entitled to share in the consideration equally, where their interest in the property were of equal value and where such interest were of unequal value, proportionately the value of their respective interests. In the circumstances, it is argued that the High Court as well as the subordinate Courts erred in holding that the plea of being tenants in the land in dispute was not available to them to defeat the superior claim set up by respondents Nos.1 and 2.

6. The contentions raised in support of this petition need examination. Leave to appeal is granted. Security for costs in the sum of Rs.2,

500. The appeal may be made ready for hearing on the present record with permission to the parties to file additional documents, if any. The order directing maintenance of status quo with regard to possession already made in confirmed. AA./M‑1238/S Leave granted.