JHABBAR SINGH (DECEASED) THROUGH LEGAL HEIRS & Ors. v. JAGTAR SINGH

1.3 Apart from the fact that the right of pre-emption is very weak right and capable of being defeated by all legitimate methods, the pre-emptor must establish that he had the right to pre-empt on the date of sale, on the date of the filing of the suit and on the date of the passing of the decree by the Court of the first instance. The pre-emptor or the claimant-plaintiff who claims the right to pre-empt the sale on the date of sale, has also to prove that such right continued to subsist till the passing of the decree of the first court. If the claimant-plaintiff loses that right or the vendee improves his right equal or above the right of the claimant before the adjudication of the suit, the suit for pre- emption would fail. [Para 17][579-G; 580-A-B]

1.4 It is difficult to subscribe the view taken by the High Court in the impugned order that since no instrument of partition was drawn on the date of passing of the decree by the trial court, the joint status of the parties had not come to an end. Having duly considered the provisions contained in the Punjab Land Revenue Act and also the Haryana Land Records Manual, it clearly emerges that as per Section 118 of the Land Revenue Act, when there is a question as to the property to be divided, or the mode of making a partition, the Revenue Officer after such inquiry as he deems necessary, is required to record an order stating his decision on the question and record his reasons for the decision. [Para 26][589-G; 583-A-B] A B C D E F G H JHABBAR SINGH (DECEASED) THROUGH LEGAL HEIRS v. JAGTAR SINGH S/O DARSHAN SINGH 567

1.5 Section 121 states that when the partition is completed, the Revenue Officer shall cause an instrument of partition to be prepared, and the date on which the partition is to take effect to be recorded therein. If the said provision contained in Section 121 is closely read, it clearly appears that it deals with the procedure to be followed by the Revenue Officer, after the partition is completed. Meaning thereby, the Revenue Officer after the Partition is completed, has to cause an instrument of partition to be prepared and record therein the date on which the partition is to take effect. When the inquiry as contemplated in Section 118 on the question as to the property to be divided, or the mode of making partition is made by the Revenue Officer, and an order stating his decision on the question along with the reasons for such decision is passed, the partition is deemed to have completed, subject to the decision of appeal that may be preferred against such order as contemplated in sub-section 2 of Section 118. Section 117 of the Punjab Land Revenue Act confers discretion upon the Revenue Officer to decide the question as to the title in any property of which the partition is sought, either by himself or to refer the question to be determined by the competent court. Thus, the jurisdiction of the Revenue Officer in the cases of partition is concurrent with that of the civil court. Therefore, for the purpose of interpreting Section 121, the Court can safely draw an analogy from the provisions contained in Order XX, Rule 18 C.P.C. which pertain to the procedure to be followed on the passing of the decree for the partition of the property. [Paras 27 and 28][583-D-H]

1.6 If the said analogy is applied to the provisions contained in the Punjab Land Revenue Act pertaining to the Partition, when a decision is taken by the Revenue Officer under Section 118 on the question as to the property to be divided and the mode of partition, the rights and status of the parties stand decided and the partition is deemed to have completed. At this stage, such decision is required to be treated as the “decree”. The consequential action of preparing the instrument of partition as contemplated in Section 121 of the Land Revenue Act would be only ministerial or administrative act to be carried out to completely dispose of the partition case instituted before the A B C D E F G H 568 SUPREME COURT REPORTS [2023] 3 S.C.R. A B C D E F G H Revenue Officer. Hence, once the decision on the property to be divided and on the mode of partition is taken by the Revenue Officer under Section 118, the joint status of the parties would stand severed on the date of such decision, subject to the decision in appeal if any preferred by the party. The consequential action of drawing an instrument of partition would follow thereafter. Hence, merely because the instrument of partition was not drawn, it could not be said that the partition was not completed or that the joint status of the parties was not severed. [Para 30][584-G; 585-A-C]

1.7 In the present case, the Assistant Collector i.e., concerned Revenue Officer vide the order dated 25.05.1982 had rejected the objections raised by the plaintiff and others with regard to the mode of partition and had confirmed the mode of partition accordingly. On that day, the “Naksha Be” was already annexed to the file and the case was listed on 31.05.1982 for hearing the objections as to the “Naksha Be”. On 31.07.1982, the Assistant Collector passed the order stating inter alia that the Patwari and Kanungo were present, and they had explained the parties about the passage and the boundaries of the plots, and that as per “Naksha Be”, the partition was accepted. The details of the number of khasras allotted to both the parties i.e., to defendant and others and to plaintiff were also mentioned in the said order. The partition having been accepted as per the said “Naksha Be”, the joint status of the parties had stood severed.

Of course, the said order dated 31.07.1982 was challenged by the plaintiff by way of an appeal before the Collector who vide the order dated 12.10.1982 had dismissed the same. The said order of Collector was further challenged by the said plaintiff by filing revision application before the Commissioner. Though, the Commissioner had initially granted stay against the operation of the order dated 31.07.1982 upto 16.11.1982, admittedly the said stay was not further extended thereafter. Under the circumstances, the joint status of the parties had come to an end on 31.07.1982, when the Assistant Collector passed the order and when the same was confirmed by the Collector on 19.10.1982. The trial court and the appellate court, under the circumstances, had rightly held that the plaintiff did not possess the status of co-sharer on the date of decree i.e., on 01.12.1982, JHABBAR SINGH (DECEASED) THROUGH LEGAL HEIRS v.

JAGTAR SINGH S/O DARSHAN SINGH 569 and that his right of pre-emption had not survived till the date of passing of the decree in the suits. The High Court grossly erred in misinterpreting the provisions of Punjab Pre-emption Act and of Land Revenue Act, and in setting aside the judgments and decrees passed by the trial court and the appellate court. The impugned order passed by the High Court is quashed and set aside. [Paras 32 and 33][585-H; 586-A-G] U.P. Awas Evam Vikas Parishad vs. Gyan Devi AIR 1995 SC 724 : [1994] 4 Suppl. SCR 646 - relied on. Shyam Sunder and Others vs. Ram Kumar and Another (2001) 8 SCC 24 : [2001] 1 Suppl. SCR 115; Bishan Singh & Others vs. Khazan Singh & Another AIR 1958 SC 838 : [1959] SCR 878; Bhagwan Das (Dead) by LRS and Others vs. Chet Ram 1971 (1) SCC 12 : [1971] 2 SCR 640; Barasat Eye Hospital vs. Kaustabh Mondal (2019) 19 SCC 767; Raghunath (Dead) by LRs. vs. Radha Mohan (Dead) Through LRs.

And Others (2021) 12 SCC 501; Har Devi vs. Ram Jas and Others 1974 PLJ 345; Lala Ram vs. The Financial Commissioner, Haryana 1991 SCC Online P&H 1105; Pritam Singh vs. Jaskaur Singh 1992 SCC Online P&H 676; Munshi vs. The Financial Commissioner, Haryana, Chandigarh 1993 SCC Online P&H 1086; Ramji Lal and Another vs. The State of Punjab and Others AIR 1966 P&H 374; Pritam Singh vs. Jaskaur Singh 1992 SCC online P&H 676; Shub Karan Bubna Alias Shub Karan Prasad Bubna v. Sita Saran Bubna and Others (2009) 3 SCC (Civ) 820 – referred to. Case Law Reference [1959] SCR 878 referred to [1994] 4 Suppl. SCR 646 relied on (2019) 19 SCC 767 (2021) 12 SCC 501 [1971] 2 SCR 640 AIR 1966 P&H 374 referred to referred to referred to referred to Para 4 Para 13 Para 16 Para 16 Para 18 Para 18 A B C D E F G H 570 SUPREME COURT REPORTS [2023] 3 S.C.R. A [2001] 1 Suppl. SCR 115 (2009) 3 SCC (Civ) 820 referred to referred to Para 19 Para 29 CIVIL APPELLATE JURISDICTION: Civil Appeal No.

1497 of 2008. B C D E F From the Judgment and Order dated 17.08.2007 of the High Court of Punjab & Haryana at Chandigarh in RSA No. 1470 of 1983. With Civil Appeal No.1498 of 2008. Narender Hooda, Sr. Adv., Varun Punia, Jasbir Singh Malik, Advs. for the Appellants. Rajiv Bhalla, Sr. Adv., Tripurari R., Ms. Ritu Puri, B.S. Billoria, Sumeir Ahuja, Jai Surya J., Bharat Upreti, Sandeep Lamba, Sagar Roy, Ms. Reeta Puniya, Sunil, Anuj Raghuvanshi, Ram Narayan Mohanty, Ambes Shehbaz Ansari, Kamal Mohan Gupta, Ms. S. Janani, Shiv Singh Yadav, Priya Ranjan Kumar, Amar Nath Singh, Advs. for the Respondent. The Judgment of the Court was delivered by BELA M. TRIVEDI, J.

Both the appeals arise out of the common judgment and order dated 17.08.2007 passed by the High Court of Punjab and Haryana at Chandigarh in RSA No.1470/1983 and RSA No. 1557/1983, whereby the High Court, while allowing the said appeals filed by the original plaintiff Jagtar Singh (predecessor of the present respondent)decreed the Civil Suits no. 420/1981 and 421/1981, filed by him, seeking decree for the possession of the suit lands, claiming right of pre-emption against the original defendants Jhabbar Singh and others (the predecessor of the present appellants). The present appellants and respondent have been substituted as the legal heirs of the original defendant Jhabbar Singh and original plaintiff Jagtar Singh respectively.

The factual matrix giving rise to the present appeals are as G under: - (2.1) The Civil Suit No.420/1981 was filed by the plaintiff Jagtar Singh against the defendant Jhabbar Singh and others, with regard to the land admeasuring 12 bighas representing 240/ 819thshare of the land admeasuring 40 bighas 19 biswas, as detailed in para 1 of the plaint. The said land was originally H JHABBAR SINGH (DECEASED) THROUGH LEGAL HEIRS v. JAGTAR SINGH S/O DARSHAN SINGH [BELA M. TRIVEDI, J.] 571 owned by one Jit Singh, who had sold the same for consideration of Rs.46,500/- to the defendant Jhabbar Singh and others vide registered sale deed dated 07.04.1980. (2.2) The Civil Suit no.421/1981 was also filed by the plaintiff Jagtar Singh pertaining to the land admeasuring 10 bighas 18 biswas representing 218/819thshare of the land admeasuring 40 bighas and 19 biswas as detailed in para 1 of the plaint, originally owned by Jit Singh and his wife Piar Kaur, who had sold the same for a consideration of Rs 42,500/- to the defendant Jhabbar Singh and others vide registered sale deed dated 24.04.1980.

The learned senior counsel Mr. Narender Hooda appearing for the appellants (original defendants) placing reliance on the provisions contained in Section 121 of the Punjab Land Revenue Act, 1887 (hereinafter referred to as the ‘Revenue Act’) submitted that after the partition was completed, the function of the Revenue Officer to prepare an instrument of partition and fixing the date for taking effect of the partition was only an executory or ministerial act. As such “Naksha Be” having already been prepared when the Assistant Collector had passed the order, and the objections of the respondent (original plaintiff Jagtar Singh) with regard to the mode of partition having already been rejected vide his order dated 25.05.1982, the said “Naksha Be” had stood A B C D E F G H 574 SUPREME COURT REPORTS [2023] 3 S.C.R. A B C D E F G H confirmed, and thereafter the said “Naksha Be” was to be treated as “Naksha Zeem” for the final allocation of lands between the parties. According to him, thereafter the Assistant Collector had passed the order on 31.07.1982 accepting the partition, and the appeal against the said order preferred by Jagtar Singh before the Collector was dismissed on 12.10.1982, and therefore the right of pre-emption even if had existed in favour of the plaintiff Jagtar Singh on the date of filing of the suits, did not survive on the date of passing of the decrees in the civil suits on 01.12.1982. He further submitted that the right of pre-emption under the Punjab Pre-emption Act, 1913 (hereinafter referred to as the ‘Pre-emption Act’) is a weak kind of right, and as per the settled legal position, the right of pre-emption should not only exist on the date of filing of the suits, but has to subsist on the date of passing of decree also. Mr. Hooda has placed reliance on the decisions of the Punjab and Haryana High Court in Har Devi vs. Ram Jas and Others (1974 PLJ 345); Lala Ram vs. The Financial Commissioner, Haryana (1991 SCC Online P&H 1105); Pritam Singh Vs. Jaskaur Singh (1992 SCC Online P&H 676) and Munshi vs. The Financial Commissioner, Haryana, Chandigarh (1993 SCC Online P&H 1086) to buttress his submissions.

Per contra, the learned senior counsel, Mr. Rajiv Bhalla appearing for the respondent repelling the submissions made on behalf of the appellants submitted that as per Section 121 of the Revenue Act, the partition comes into effect one date to be notified by the Assistant Collector in the instrument of partition and not on the date of preparation of “Naksha Be” or “Naksha Zeem”. According to him, the said date is significant for the purpose of determining the liability of the parties to pay the revenue and also for recording the ownership rights in the record of rights. Mr. Bhalla relied upon the various proformas contained in the Haryana Land Records Manual, 2013 to submit that the partition and severance of status of the co-sharer could be notified by the Assistant Collector only in accordance with Section 121 of the Revenue Act and Clauses 18.12 to 18.14 of the Manual. Distinguishing the judgments relied upon by the learned senior counsel Mr. Hooda for the appellants, learned senior counsel, Mr. Bhalla submitted that in the said cases, the status of co-sharer had come to an end on the date set out in the instrument of partition, whereas in the instant case neither the instrument of partition was prepared, nor the date was determined by the Assistant Collector as per Section 121 of the Revenue Act, and therefore it could not be said JHABBAR SINGH (DECEASED) THROUGH LEGAL HEIRS v. JAGTAR SINGH S/O DARSHAN SINGH [BELA M. TRIVEDI, J.] 575 that the proceedings of partition had stood concluded before the date of decrees passed in the suits. Placing reliance upon the judgment of this Court in case of Bishan Singh & Others vs. Khazan Singh & Another1 he submitted that the right of pre-emption is a right of substitution and not a right of re-purchase and therefore the plaintiff was not required to challengein the suits, the sale deeds executed in favour of the appellants- defendants.

For the better appreciation of the rival contentions raised by the learned counsel for the parties, it would be beneficial to refer to some of the provisions contained in the Pre-emption Act and the Revenue Act. Section 4 of the Pre-emption Act pertains to the right of pre-emption which reads as under:

4. Right of pre-emption application of - The right of pre- emption shall mean the right of a person to acquire agricultural land or village immoveable property or urban immoveable property in preference to other persons, and it arises in respect of such land only in the case of sales and in respect of such property only in the case of -sales or of foreclosures of the right to redeem such property. Nothing in this section shall prevent a Court from holding that an alienation purporting to be other than a sale is in effect a sale.

Section 15 deals with vesting of right of pre-emption in favour of certain categories of persons. The relevant part thereof is reproduced as under: -

15. Persons in whom right of pre-emption vests in respect of sales of agricultural land and village immovable property ~ (1) The right of pre-emption in respect of agricultural land and village immovable property shall vest- (a)……. (b) Where the sale is of a share out of joint land or property and is not made by all the co-sharers jointly, - First, in the sons or daughters or sons’ sons or daughters’ sons of the vendor or vendors; Secondly, in the brothers or brother’s sons of the vendor or vendors; 1 AIR 1958 SC 838 A B C D E F G H 576 SUPREME COURT REPORTS [2023] 3 S.C.R. A B C D E F G H Thirdly, in the father’s brother or father’s brother’s sons of the vendor or vendor’s; Fourthly, in the other co-shares; Fifthly, in the tenants who hold under tenancy of the vendor or vendor the land or property sold or a part thereof; (c)…….

The procedure for giving notice to the pre-emptor has been laid down in Section 19 and the procedure for giving notice by the pre-emptor to the vendor has been laid down in Section 20. Section 21 of the Pre- emption Act states that any person entitled to a right of pre-emption may, when the sale or foreclosure has been completed, bring a suit to enforce that right.

So far as the provisions contained in the Punjab Land Revenue Act, are concerned, Chapter IX thereof pertains to the “Partition”. As per Section 111 thereof, the application for partition could be made by any joint owner of land or any joint tenant of a tenancy in which a right of occupancy subsists, to the Revenue Officer in the circumstances mentioned therein. The procedure to be followed by the Revenue Officer on receiving the application under Section 111 is laid down in Sections 113 to 120.

Section 118 pertaining to the disposal of other questions and to the Appeal reads as under: -

118. Disposal of other question: -(1) When there is a question as to the property to be divided, or the mode of making a partition, the Revenue-officer shall, after, such injury as he deems necessary, record an order stating his decision on the question and his reasons for the decision. (2) An appeal may be preferred from an order under sub-section (1) within fifteen days from the date thereof, and, when such an appeal is preferred and the institution thereof has been certified to the revenue-officer by the [authority to whom the appeal has been preferred] the Revenue-officer shall stay proceeding pending the disposal of the appeal. (3)…… (4)……

JHABBAR SINGH (DECEASED) THROUGH LEGAL HEIRS v. JAGTAR SINGH S/O DARSHAN SINGH [BELA M. TRIVEDI, J.] 577

Section 121 which pertains to the instrument of partition, being A relevant for our purpose is reproduced as under: “121. Instrument of partition: - When a partition is completed, the Revenue-officer shall cause an instrument of partition to be prepared, and the date on which the partition is to take effect to be recorded therein.”

Section 123 pertains to the affirmation of partition made without the intervention of the Revenue Officer which reads as under:

123. Affirmation of partition privately affected: - (1) In any case in which a partition has been made without the intervention of a Revenue-officer, and party thereto may apply to a Revenue- officer for an order affirming the partition. (2) On receiving the application, the Revenue-officer shall inquire into the case, and, if he finds that the partition has in fact been made, he may make an order affirming it and proceed under section 119, 120, 121 and 122, or any of those sections, as circumstances may require, in the same manner as if the partition had been made on an application to himself under this Chapter.

12. At the outset, it may be noted that the plaintiff Jagtar Singh, the predecessor of the present respondent, had filed the suits claiming himself to be the co-sharer in the joint khewat along with the vendor Jit Singh, and had sought relief against the defendant Jhabbar Singh and others with regard to the possession of the suit lands, on the ground that he as a co-sharer had a superior right to pre-empt the sales, and that he was not put to any notice of sale of the suit lands on or before the date of such sales. In a very loosely drafted plaint, the plaintiff had neither pleaded as to how he was the co-sharer, nor had he impleaded the said Jit Singh, the owner of the suit lands, with whom he claimed to be the co-sharer, and who had sold the suit lands to the defendants Jhabbar Singh and Others. It is needless to say that in a suit for pre-emption, the vendor i.e., the owner of the suit land who had allegedly not given any notice of sale to the plaintiff as required to be given under Section 19 of the Pre-emption Act and against whom the right to pre-empt the sale is claimed would be a proper party if not a necessary party, for a complete and final adjudication on the issues involved in the suit.

As held by this Court in U.P. Awas Evam Vikas Parishad vs. Gyan Devi2, necessary party is one without whom no order can be 2 AIR 1995 SC 724 B C D E F G H 578 SUPREME COURT REPORTS [2023] 3 S.C.R. A B C D E F G H made effectively; and a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceedings. When a right to pre-empt the sale was claimed by the plaintiff Jagtar Singh as a co- sharer in the lands alongwith the owner Jit Singh, alleging that the mandatory provisions contained in Section 19 i.e., for giving notice to the pre-emptor, was not complied with by the owner or seller Jit Singh, his presence as the party defendant was desirable along with the other defendants Jhabbar Singh and Others, to effectively and finally decide the disputes between the parties. Though, Order I, Rule 9 states that no suit shall be defeated by reasons of the misjoinder or non-joinder of parties, care must be taken by the court to ensure that all the parties, be it the plaintiff or the defendant, whose presence is necessary for complete and final adjudication on the issues involved in the suit, are before the court. That is the reason why the courts are empowered to strike out or add parties, at any stage of the proceedings as per Order I, Rule 10, C.P.C.

Further, having regard to the absolutely sketchy and loosely drafted plaint in the instant case, the Court is tempted to regurgitate the basic and cardinal rule of pleadings contained in Order VI, Rule2(1) of the Code, according to which every pleading (i.e., plaint or written statement) has to contain a statement in concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be. Of course, the pleading need not contain the evidence by which such material facts are to be proved, nonetheless the facts necessary to formulate a complete cause of action i.e., the material facts must be stated. Omission of a single material fact would lead to an incomplete cause of action and in that case, the statement of claim would become bad in the eye of law.

Now, so far as the right of pre-emption is concerned, it may be noted that it is a very weak right and could be defeated by all legitimate methods. This Court as back as in 1958, in case of Bishan Singh and Others vs. Khazan Singh & Another (supra), had set-forth the contours of the right of pre-emption. It was opined therein by the four-Judge Bench that-

11…..The right of pre-emption is not a right to the thing sold but a right to the offer of a thing about to be sold. This right is called the primary or inherent right. (2) The pre-emptor has a secondary right or a remedial right to follow the thing sold. (3) It is a right of JHABBAR SINGH (DECEASED) THROUGH LEGAL HEIRS v. JAGTAR SINGH S/O DARSHAN SINGH [BELA M. TRIVEDI, J.] 579 substitution but not of re-purchase i. e., the pre-emptor takes the entire bargain and steps into the shoes of the original vendee. (4) It is a right to acquire the whole of the property sold and not a share of the property sold. (5) Preference being the essence of the right, the plaintiff must have a superior right to that of the vendee or the person substituted in his place. (6) The right being a very weak right, it can be defeated by all legitimate methods, such as the vendee allowing the claimant of a superior or equal right being substituted in his place.

The afore-stated position was reiterated by this Court in Barasat Eye Hospital vs. Kaustabh Mondal3, and again in the recent decision in case of Raghunath (Dead) by LRs. vs. Radha Mohan (Dead) Through LRs. And Others4,wherein it has been observed as under: - “14. We have given our thoughtful consideration to the aforesaid issue and in order to determine the same, we had, at the inception itself, set out the judgment in Barasat Eye Hospital case [Barasat Eye Hospital v. Kaustabh Mondal, (2019) 19 SCC 767 : (2020) 4 SCC (Civ) 810] . We have, thus, referred to the earlier judicial view in para 10 of the judgment extracted aforesaid. The historical perspective of the right of pre-emption shows that it owes its origination to the advent of the Mohammedan rule, based on customs, which came to be accepted in various courts largely located in the north of India. The pre-emptor has been held by the judicial pronouncements to have two rights. Firstly, the inherent or primary right, which is the right to the offer of a thing about to be sold and the secondary or remedial right to follow the thing sold. It is a secondary right, which is simply a right of substitution in place of the original vendee. The pre-emptor is bound to show that he not only has a right as good as that of the vendee, but it is superior to that of the vendee; and that too at the time when the pre-emptor exercises his right. In our view, it is relevant to note this observation and we once again emphasise that the right is a “very weak right” and is, thus, capable of being defeated by all legitimate methods including the claim of superior or equal right.”

At this juncture, it would be also apt to mention that apart from the fact that the right of pre-emption is very weak right and capable