- (1.)Arjan Singh has filed this second appeal against the judgment and decree of the Additional District Judge, Sirsa, dated August 9, 1983, by which his rival pre-emptor Har Chand was dismissed.
(2.)One Kahna Ram had sold the land in dispute for Rs. 1,500/- to the vendee Sahib Ram, defendant-respondent. This sale was sought to be pre-empted initially by the appellant Arjan Singh in the capacity of a tenant in a suit for pre-emption filed on October 11, 1980. This suit was decreed by the trial Court on August 25, 1982 (Annexure PA). Har Chand son of the vendor also filed a suit for pre-emption on September 12, 1981. He made the appellant Arjan Singh a party to the suit. The trial Court held that the right of pre-emption of Har Chand, being son of the vendor, was superior to that of Arjan Singh who was a tenant. On these findings the suit of Har Chand was decreed on September 1, 1982, i.e. a few days after the decree passed in favour of the appellant Arjan Singh. Against this decision Har Chand filed an appeal and Arjan Singh filed cross-objections. The lower appellate Court vide the impugned judgment dismissed the appeal as well as the cross-objections.
(3.)In this appeal it is not denied that Har Chand's right to pre-empt the sale was superior to that of Arjan Singh appellant. The learned appellant's counsel has admitted that in the face of the pre-emption decree passed in favour of Har Chand the earlier pre-emption decree passed in favour of the appellant became infructuous and inexecutable. His grievance is that in pursuance of the pre-emption decree passed in favour of the appellant, the latter deposited the pre-emption money in terms of the decree which has been withdrawn by the vendee Sahib Ram. Subsequently, Har Chand also deposited the pre-emption money pursuant to his decree and this money has also been withdrawn by the vendee. The learned counsel contended that the vendee Sahib Ram cannot retain both the pre-emption amounts and since the decree in favour of the appellant has become infructuous and inexecutable it was incumbent upon the lower appellate Court to have ordered the vendee Sahib Ram to refund the pre-emption amount deposited by the appellant Arjan Singh. This contention has ample force. The vendee Sahib Ram cannot keep with himself the pre-emption money deposited by both rival pre-emptors. Since the pre-emptive right of Hari Chand has prevailed over the pre-emptive right of Arjun Singh, the vendee Sahib Ram can retain only the pre-emption money deposited by Har Chand. He has to refund any pre-emption money deposited by the appellant Arjan Singh.