26.09. 93(O&M) .2025 .09.2025 rs. Dhan Raj & Ors. Om Parkash & O & v. II. 93 RSA No. 20
Case Details
RSA No. 2060 of 1993 1993 IN THE HIG HIGH COURT OF PUNJAB AND HAR HARYANA AT CHANDIGARH …Appellant llants …Respondent ents …Appellant llants …Respondent ents I. RSA No. 2060 of 1993(O Reserved on: 29.08.202 Pronounced on: 26.09. 93(O&M) .2025 .09.2025 rs. Dhan Raj & Ors. Om Parkash & O & Ors. Versus II. 93 RSA No. 2061 of 1993 rs. Dhan Raj & Ors. Om Parkash & O & Ors. Versus CORAM: HON’BL PTA N’BLE MR. JUSTICE DEEPAK GUPTA Mr. Vinay Yadav, Advocate for Argued by:- Mr. 993. Appellants in RSA No. 2060 of 1993. App for Mr. Bharat Bhandari, Advocate for Mr. 993 Appellants in RSA No. 2061 of 1993 App Mr. Saurabh Bajaj, Advocate Mr. For the respondents. For t *** DEEPAK GUPTA, TA, J. These two two regular second appeals arise ou ated se out of a common judgment dated 26.08.1993 passe assed by the learned Additional Di l District Judge, Sirsa, whereby Civ Civil Appeal Nos. 132 132-CA of 1992 and 133-CA of 199 1992 were accepted. Both appeal peals had been filed ag d against separate judgments of the
Facts
f the trial Court in two suits. 2. Parties to both the litigations are sa Part o the re same and dispute pertains to the land forming par part of same Khewat. To avoid con erred confusion, parties shall be referred as per their statu tatus before the trial Court. JITEN SHARMA 2025.09.26 16:31 I attest to the accuracy and integrity of this document Page N: 1 of 5 RSA No. 2060 of 1993 1993 3. Nanu, Mahla Ram and Banwari sol Nan d (½ i sold 40 Kanal 05 Marla of land (½ share out of 80 80 Kanal 12 Marla) to the defend endants-appellants through a regi egis- tered sale deed eed dated 21.07.1989 for ₹1,25,7 r co- 25,781.25. Subsequently, other co sharers of the sa e same Khewat—namely Moji, Ladh
Legal Reasoning
urt in vendees are now before this Court in the present two wo regular second appeals, assailin ailing the judgment of first appellat llate court. 9. Contention of Ld. Counsel for the Cont the appellants – defendants is tha that both the sale de deeds dated 21.07.1989 and 16.0 16.08.1989 were executed in favou vour of the appellants ants – vendees, by different co-shar ior to sharers of the same Khewat, prior to the institution of n of the two suits by the plaintiffs and ffs – respondents on 31.05.1990 and JITEN SHARMA 2025.09.26 16:31 I attest to the accuracy and integrity of this document Page N: 2 of 5 RSA No. 2060 of 1993 1993 therefore, appell pellate court was in error in not c ction ot considering the effect of Section 21A of the Punja unjab Pre-Emption Act, 1913, as th s the appellants had improved thei their status as co-sha sharers i.e., equivalent to the plai plaintiffs, prior to the filing of th f the suits. It is urged rged by learned counsel that when hen the suit to pre-empt the sal sale dated 21.07.19 7.1989 was filed on 31.05.199 .1990, the defendants-appellant llants had already impr improved their status as co-sharers re in rers by purchasing another share in the same Khew hewat from the other co-sharers ated rers by virtue of sale deed dated 16.08.1989, and and as such the sale deed dated pre- ated 21.07.1989 could not be pre empted. It is furt further argued that as far as the su deed e suit for pre-empting the sale deed dated 16.08.1989 1989 is concerned, by virtue of the , the the prior sale dated 21.07.1989, the defendants had b ad become co-sharers in the same ame Khewat much prior to the filin filing of the suit, and th nd therefore, the second sale is also also not pre-emptible. 10. On On the other hand, he the learned counsel for the the respondents con contend that the First Appellate C ction te Court has rightly applied Section 28A of the Pre Pre-emption Act in order to hold hold that the defendants had no not improved their s eir status, as their sales were pre ayed pre-emptible. He accordingly prayed for dismissal of b of both the appeals. 11. Submissions of Subm learned counsel been nsel for the parties have been considered and r nd record perused. 12. Before this Court, it is undisputed Befo e co- uted that the plaintiffs became co sharers by virtue rtue of the 1983 sale deed and cons 986, consequent mutation of 12.09.1986 and that their n ir names appeared in Jamabandi . The ndi for 1984-85 and 1989-90. The parties also do n do not dispute the sale considerati ration or the defendants’ expense nses towards stamp a p and registration charges. It is eq is equally clear that the defendant ants failed to prove an e any improvements in the land. 13. Accordingly, the sole issue that n Acco at now arises for consideration i on is whether the plai plaintiffs, being co-sharers, were e m- re entitled to pre-empt the two im pugned sale dee deeds executed by other co-share ants- harers in favour of the defendants appellants, partic articularly in light of subsequent le t legislative repeal and judicial pr pro- nouncements cha s characterising the right as piratica tical. JITEN SHARMA 2025.09.26 16:31 I attest to the accuracy and integrity of this document Page N: 3 of 5 RSA No. 2060 of 1993 1993 14. The courts have consistently describ The scribed the right of pre-emption as as a piratical right, a r a right of substitution rather than than acquisition, restricting the ve ven- dor's freedom of m of contract. In Atam Prakash v. S ) SCC h v. State of Haryana, 1986 (2) SCC 249, Hon'ble Sup Supreme Court described it as a w dom a weak right, a clog on the freedom of vendor, and h nd held that right of pre-emption b ion based on vicinage is unconstit stitu- tional. While uph upholding co-sharers' rights, then hen the Court emphasized its stat tatu- tory and limited ited nature. It is called a piratical rig ndee al right because it compels a vendee to surrender pro property lawfully purchased mer who merely to satisfy a co-sharer, who claims preference ence. It allows one person to oust oust another from the property a ty al- ready acquired for consideration and so is treat eated as a disliked right. 15. The said right of pre-emption being The te to ing a weak right, it is subordinate to the rights of the the vendee and can be defeated b d by any lawful method. As held b ld by Hon'ble Supreme eme Court in Bishan Singh & Ors. 1958 rs. v. Khazan Singh & Ors. AIR 1958 SC 838, pre-emp emption is a statutory but weak upon eak right, enforceable only upon completion of sa f sale and liable to be defeated by by all lawful means available to th o the s vendees. This legal position le is reiterated b rt d by Hon’ble Supreme Court in in Raghunath vs Ra s Radha Mohan (2020), Law Finder en in inder Doc Id # 1752111; and then in Jhabbar Singh v. v. Jagtar Singh (2023), Law Finder inder Doc Id # 2196046. 16. The Punjab Pre-emption Act, 1913 The 913 has already been repealed in it in its application to St o State of Punjab in 1973. For the igarh the Union territories of Chandigarh and Delhi, the sa e same has been repealed in 1989 f co- 1989. Even in Haryana, right of co sharer to pre-em empt the sale is no longer available . lable after Haryana Act 10 of 1995. 17. Although the present case pertain Alth taining to Haryana, is governed by pre-repeal law, aw, the consistent judicial appro pproach has been to discourag rage expansion of this this right. Thus, even on equitable ble considerations, plaintiffs canno nnot be granted a r a right that legislation itself ha 973); has abolished in Punjab (1973) Delhi/Chandigarh ana. igarh (1989) and in 1995 in Haryana. 18. In the light of aforesaid position, In th as to on, it is required to be seen as to whether the rig right of pre-emption claimed b d by the plaintiffs-respondents i ts is JITEN SHARMA 2025.09.26 16:31 I attest to the accuracy and integrity of this document Page N: 4 of 5 RSA No. 2060 of 1993 1993 lawfully defeated ated by the vendees-defendants (ap (appellants herein) by virtue of the f the ds. two sale deeds. 19. Section 21-A of the Punjab Pre-Emp Sect - Emption Act 1913 reads as under: - “21A. Any Any improvement, otherwise than th ssion, n through inheritance or succession made, in th in the status of a vendee defendant af r pre- nt after the institution of a suit for pre emption sh n shall not affect the right of the pre- -emptor plaintiff in such suit.” 20. Perusal of the aforesaid provision Peru ion would reveal that it invalidate dates the effect of acq f acquiring any right by the defend ption fendant - vendee in a pre-emption suit for purpose ose of improvement of his status s pendente lite except by way o ay of inheritance or su r succession. 21. In the In t instant case, both sale and ale deeds dated 21.07.1989 and 16.08.1989 were ere executed in favour of the app f the appellants prior to the filing of the two suits on 31.0 31.05.1990. Section 21A bars impro here provements pendente lite, but here the improvemen ment was prior to institution of the g the f the suits. On the date of filing the suits, the appel ppellants were already co-sharer arers by virtue of the respectiv ctive purchases. Conse onsequently, the plaintiffs’ right t The ht to pre-empt never accrued. The reliance placed ed by the respondents on Sectio ction 28A is misplaced, since tha that provision regula gulates competing rights of mult t the ultiple pre-emptors, and not the situation where ere the vendee himself has alread a co- lready attained the status of a co sharer prior to s to suit. In such a situation, applyin ishan lying the settled principle in Bishan Singh & Ors. v. K v. Khazan Singh & Ors. (AIR 1958 S ed in 958 SC 838), consistently followed in subsequent judg judgments, the weak and piratica atical right of pre-emption stand ands lawfully defeated ated, also keeping in mind the sub ubsequent legislative repeal. 22. In the aforesaid circumstances, b In t e to s, both these appeals deserve to succeed. Both th h the appeals are accordingly accep ccepted. The judgments and decree crees passed by the fir e first Appellate Court are hereby se by set aside, whereas the judgment ents and decrees pass passed by the trial Court are hereby reby restored. 26.09.2025 Jiten JITEN SHARMA 2025.09.26 16:31 I attest to the accuracy and integrity of this document Whe Whe hether speaking/reasoned hether reportable : Yes/No : Yes/No Page N: 5 of 5 (DEEPAK GUPTA) JUDGE
Arguments
sold Ladhu, Smt. Kalawati and Noja—sold 26 Kanal 17 Marl Marla (⅓ share of the land of same K me Khewat) to the same vendees b es by another registere stered sale deed dated 16.08.1989 f 89 for ₹83,906.25. 4. Plaintiffs-respondents Om Parkas Plain co- rkash and others, claiming co sharership on the n the basis of a prior sale deed date dated 26.08.1983 in their favour r r re- garding 153/1622 1622 share of the Khewat (mutatio ation sanctioned on 12.09.1986), i ), in- stituted two sepa separate suits (Civil Suit Nos. 947 a 990, 47 and 949 of 1990) on 31.05.1990 seeking to pre-em empt both sales. 5. The defendants contested the suits The with suits, asserting parity of status with the plaintiffs as c as co-sharers and pleading that the t they had paid the entire consider dera- tion, incurred ex d expenses towards stamp and reg m- registration, and further made im provements in th in the purchased land. 6. By way of two separate judgments, By w trial nts, both dated 27.02.1992, the tria Court dismissed t sed the suits holding that the plainti pre- aintiffs did not have the right to pre empt. 7. However, the First Appellate Court How ourt, by way of common judgmen ment dated 26.08.1993 1993, while disposing of the two a ssful o appeals filed by the unsuccessfu plaintiffs, allowe owed the same by holding that the they were entitled to pre-empt th t the sales. 8. The defendants of the case i.e. vend The