O&M) Hoshiar Singh (deceased) through LRs and Others v. Mahender and Others
Case Details
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA-318-1993 (O&M) Hoshiar Singh (deceased) through LRs and Others . . . . Appellants Vs. Mahender and Others . . . . Respondents Reserved on: 07.11.2025 Pronounced on: 11.11.2025 **** CORAM: HON’BLE MR JUSTICE DEEPAK GUPTA Argued by:- Mr. H.S. Dhindsa, Advocate and Mr. G.S. Gurna, Advocate for the appellants. Mr. Ashish Aggarwal, Senior Advocate with Mr. Vishal Pundir, Advocate and Mr. Anmol Ra%an S. Dhillon, Advocate for the respondents. DEEPAK GUPTA, J. **** The present appeal by the defendants is directed against the judgment and decree dated 24.10.1992 passed by the learned first Appellate Court of Addi0onal District Judge, Rohtak, whereby the appeal filed by the plain0ffs (respondents herein) was allowed, and their suit for possession by way of pre-emp0on was decreed in en0rety, reversing in part the findings of the trial Court of Sub-Judge 1st Class, Jhajjar dated 14.06.1989. 2.
Facts
Factual Background : The plain0ffs had become co-sharers in land comprised in Khewat Nos. 71 to 75 by virtue of judgment & decree dated 08.10.1984 (Ex.P1 & Ex.P2) and consequen0al muta0on dated 13.06.1986 (Ex.P1) in Civil Suit N: 408 of 1984 suffered in their favour by their father Surjan.
Legal Reasoning
preferred the present appeal against above reversal. This Court ini0ally, vide order dated 11.09.2000, allowed the appeal by holding that the Haryana Amendment Act No.10 of 1995 abolished the co-sharers’ right of pre-emp0on. 7. However, on 12.10.2001, in Civil Appeal No.7169 of 2001, & 7170 of 2001 arising out of SLP [C] N: 1874 of 2001, & SLP [C] N: 2223 of 2001 respec0vely, Hon’ble Supreme Court set aside the said order by referring to Shyam Sundar v. Ram Kumar, AIR 2001 SC 2472, and remanded the ma%er for decision afresh, clarifying that the right of pre-emp0on must subsist only up to the date of decree of the trial court. 8. Submissions: Learned counsel for the appellants-defendants contended that (i) the vendor Smt. Sarjo was not impleaded, rendering the suit defec0ve for non-joinder; and that (ii) the right of pre-emp0on based on co- sharership stood abolished by the 1995 Amendment. 9. Conversely, learned senior counsel for the respondents-plain0ffs argued that the right to pre-empt existed on the date of decree (14.06.1989) and that plain0ffs had specifically pleaded absence of no0ce under Sec0on 19, which defendants admi%ed to be 'not required', amoun0ng to statutory viola0on. 10. cord. This Court has considered rival submissions and perused the re- 11. Points for Determina4on : The following ques0ons arise for determina0on: (i) Whether plain(cid:17)ffs had a subsis(cid:17)ng right of pre-emp(cid:17)on on the date of decree? NEETIKA TUTEJA 2025.11.11 16:47 I attest to the accuracy and integrity of this document Page 3 of 8 RSA-318-1993 (O&M) (ii) Whether defendants could resist the suit as co-sharers? (iii) Whether non-joinder of the vendor vi(cid:17)ates proceedings? (iv) Whether non-compliance with Sec(cid:17)on 19 affects the sale? 12. Analysis by this Court: In Shyam Sundar v. Ram Kumar (AIR 2001 SC 2472), Hon’ble Supreme Court held that the relevant date for determining existence of a pre-emp0ve right is the date of decree of the trial court. In the present case, the sale deed (Ex.P4) was executed on 05.06.1985, and the decree was passed by the court of first instance on 14.06.1989 i.e., both prior to 1995 Amendment. Therefore, the plain0ffs’ right to pre-empt remained intact. 13. The defendants’ plea of co-sharership fails as sale deed (Ex.D3) dated 22.10.1984 was only in favour of only one of the defendants - Hoshiar Singh and not defendants N: 2 & 3/co-vendees Vidya and Savitri, who were strangers to the Khewat. By associa0ng strangers in purchase, qualifica0on of Hoshiar as co-sharer was lost, in view of the Full Bench ruling in Garib Singh v. Harnam Singh (1971 PLJ 579), which was later on followed in Ram Saran Dass v. Har Kishan Lal and another, 1977 PLJ 340; and Ram Krishan v. Ra7 Ram, 1986 PLJ 701. 14. As regards non-serving of no0ce to the plain0ffs prior to sale, Sec- 0on 19 to 21 of the Punjab Pre-emp0on Act, are relevant in this regard, which read as under. “19. No4ce to pre-emptors. – When any person proposes to sell any agricul- tural land or village immovable property or urban immovable property or to foreclose the right to redeem any village immovable property or urban immov- able property, in respect of which any persons have a right of pre-emp0on, he may give no0ce to all such persons of the price at which he is willing to sell such land or property or of the amount due in respect of the mortgage, as the case may be. Such no0ce shall be given through any Court within the local lim- NEETIKA TUTEJA 2025.11.11 16:47 I attest to the accuracy and integrity of this document Page 4 of 8 RSA-318-1993 (O&M) its of whose jurisdic0on such land-or property or any part thereof is situate, and shall be deemed sufficiently given if it be stuck up on the chaupaI or-other public place of the village, town or place in which the land, or property is situ- ate. 20. No4ce by pre-emptor to vendor. – The right of pre-emp0on of any person shall be ex0nguished unless such person shall, within the period of three months from the date on which the no0ce under sec0on 19 is duly given or within such further period, not exceeding one year from such date, as the Court may allow, present to the Court a no0ce for service on the vendor or mortgagee of his inten0on to enforce his right of pre-emp0on. Such no0ce shall state whether the pre-emptor accepts the price or mount due on the foo0ng of the mortgage as correct or not, and if not, what sum he is willing to pay. When the Court is sa0sfied that the said no0ce has been duly served on the vendor or mortgagee, the proceedings shall be filed. 21. Suits for pre-emp4on. – Any person en0tled to a right of pre-emp0on may, when the sale or foreclosure has been completed, bring a suit to enforce that right.” 15. The effect of non-serving of no0ce to the plain0ffs prior to sale, in the light of above provisions i.e., Sec0on 19 to 21 of the Punjab Pre-emp0on Act was considered by a co-ordinate Bench of this court in “Ram Murthy versus Ram Parshad” in RSA No.30 of 1994 decided on 21.7.2025, and it was held as under. “Thus, a pre-emptor apart from proving himself as co-sharer is also required to prove that the vendor in the sale deed sought to be pre-empted did not give no0ce to all persons having right of pre-emp0on of the price at which he was willing to sell land. Sec0on 20 provides that any person in receipt of no0ce un- der Sec0on 19 ex0nguishes his right unless he expresses his inten0on to exer- cise his right of pre-emp0on within a period of 03 months from the date of re- ceipt of no0ce under Sec0on 19. Thus, statute casts duty upon the plain0ffs, enforcing right of pre-emp0on to plead that there was no no0ce from vendor NEETIKA TUTEJA 2025.11.11 16:47 I attest to the accuracy and integrity of this document Page 5 of 8 RSA-318-1993 (O&M) under Sec0on 19. In case no0ce under Sec0on 19 was served on pre-emptor, he is to respond to the same within the 0me period prescribed to save his right from being ex0nguished under Sec0on 20 of the 1913 Act. Court prior to de- creeing the suit of pre-emptor has to return finding that Sec0on 19 was not complied with, or if complied with, vendor executed sale deed despite the pre- emptor expressing his inten0on to pre-empt the sale deed.” 16. The court then referred to the observa0ons made by Hon’ble Supreme Court in Jhabar Singh vs. Jagtar Singh 2023 AIR (Supreme Court) 2074 and held that it is true that vendor in a suit for pre-emp0on is a proper party and not a necessary party and that suit cannot be dismissed solely on the ground that vendor was not made a party. However, the issue is not the non- joinder of the necessary party, and rather, the absence of the statutory no0ce. 17. In the present case, plain0ffs i.e., respondents herein, specifically pleaded in para N: 3 of the plaint that prior to the sale dated 05.06.1985, no no0ce whatsoever was given to them as required under law. In corresponding para of the wri%en statement, defendants i.e. appellants herein did not specifically deny the said fact and rather, pleaded that it was not required to send a no0ce to the plain0ffs. 18. Meaning thereby, defendants categorically admi%ed that no no0ce was served upon the plain0ffs prior to the sale dated 05.06.1985 (Ex.P4), though the said no0ce was in fact mandatory under sec0on 19 of the Punjab Pre-emp0on Act. Thus, statutory non-compliance of no0ce under Sec0on 19 is proved, and so, plain0ffs’ right could not be ex0nguished under Sec0on 20. 19. The last conten0on as raised by Ld. counsel for the appellants-de- fendants is regarding the non-joinder of Smt. Sarjo i.e. vendor as a party to the suit. This court in RSA No.947 of 1995 decided on 03.11.2025 0tled “Mansa Ram versus Jasmer Singh” has held that where the plain0ff has based the suit on lack of no0ce under Sec0on 19 of the 1913 Act and the defendants specifi- NEETIKA TUTEJA 2025.11.11 16:47 I attest to the accuracy and integrity of this document Page 6 of 8 RSA-318-1993 (O&M) cally plead vendor-related facts like his par0cipa0on/waiver, then presence of the vendor is, at the very least, desirable, and may become necessary to effec- 0vely and finally adjudicate the controversy, as was observed in Jhabbar Singh (supra) by placing reliance on U.P. Awas Evam Vikas Parishad v. Gyan Devi, AIR 1995 SC 724 dis0nguishing “necessary” and “proper” par0es. 20. In Mansa Ram’s case (supra), the defendant (vendee) had specifically pleaded that the plain0ffs (pre-emptor) had nego0ated and finalized the bargain with the vendor Sarwan Singh, and therefore were estopped from pre-emp0ng. Based on evidence, this conten0on was found to be duly proved. It was in this factual matrix that this court held as under: “21. If the pre-emptor par0cipated in or brought about the sale, insistence on a pre-sale no0ce becomes academic, as the object of Sec0on 19 is to apprise a poten0al pre-emptor. Where the pre-emptor is himself a moving force behind the transac0on, the founda0on of the plea (want of no0ce) collapses. 22. Once such par0cipa0on is established, the doctrine of waiver or estoppel squarely applies. A pre-emptor who himself arranges, facilitates, or consents to a sale cannot thereaGer turn around to displace that very transac0on by invok- ing a right of preference. The principle that the right of pre-emp0on can be de- feated by any legi0mate means, enunciated in Bishan Singh v. Khazan Singh (supra) fully governs the present case. Hence, the reliance on Rikhi Ram (supra) and Kidar Nath (supra) is misplaced, as those decisions dealt with situ- a0ons of mere passive knowledge, not with proven ac0ve nego0a0on and facil- ita0on by the pre-emptor himself.” 21. The facts of present case are en0rely dis0nguishable from Mansa Ram’s Case (supra), in as much, in present case, there is no plea of vendor’s par0cipa0on, directly or indirectly, in the sale dated 5.6.1985 (Ex.P4). Besides, statutory non-compliance of no0ce under Sec0on 19 is admi%ed by the defen- dants – appellants. In the circumstances, non-joinder of the vendor as a party to the suit does not affect the right of plain0ffs to pre-empt the sale. NEETIKA TUTEJA 2025.11.11 16:47 I attest to the accuracy and integrity of this document Page 7 of 8 RSA-318-1993 (O&M) 22. Conclusion : Based on the above discussion, it is found that plain0ffs had a valid subsis0ng right to pre-empt as co-sharers. Defendant N: 1, by joining strangers in the sale, lost that status. Non-impleadment of vendor is not fatal in the facts and circumstances of the above case; and the statutory no0ce under Sec0on 19 was admi%edly not served. 23. Therefore, the findings of the first Appellate Court are well- reasoned. There is no reason to disturb the findings. Consequently, the appeal is dismissed. The judgment and decree of the first Appellate Court dated 24.10.1992 are affirmed. Par0es to bear their own costs. 11.11.2025 Nee(cid:17)ka Tuteja Whether speaking/reasoned? Whether reportable? Yes Yes (DEEPAK GUPTA) JUDGE NEETIKA TUTEJA 2025.11.11 16:47 I attest to the accuracy and integrity of this document Page 8 of 8
Arguments
One of the co-sharers, Smt. Sarjo wife of Baljeet, through her a%orney Manwa0, sold her share in these Khewats to the extent of 44 Kanal 16 Marla (‘the suit NEETIKA TUTEJA 2025.11.11 16:47 I attest to the accuracy and integrity of this document RSA-318-1993 (O&M) land’) to the defendants—Hoshiar Singh, Smt. Vidya, and Smt. Savitri, vide registered sale deed dated 05.06.1985 (Ex.P4) for a considera0on of ₹20,000/-. The plain0ffs ins0tuted the present suit seeking pre-emp0on of the said sale on the ground that being co-sharers in the Khewat, they possessed a preferen0al right and that no prior no0ce under Sec0on 19 of the Punjab Pre-emp0on Act, 1913 was ever served upon them. 3. The defendants contested the suit, asser0ng that they had already become co-sharers in the same Khewat through sale deeds dated 22.10.1984 (Ex.D3), and 16.05.1986 (Ex.D2), registered on 21.05.1986. 4. Trial Court Findings : AGer framing issues and appraising the evidence on record, the trial Court partly decreed the suit, holding that defendant No.1 Hoshiar Singh had already become co-sharer in Khewat Nos.71 to74 by virtue of sale deed (Ex.D3) dated 22.10.1984. Consequently, the plain0ffs’ pre-emp0on claim in respect of that por0on failed. However, for land in Khewat No.75, defendants were strangers, and the suit was decreed to that extent. 5. First Appellate Court Findings : On appeal filed by the plain0ffs, the first Appellate Court reversed the above findings and decreed the suit in toto. It reasoned that the sale deed dated 16.05.1986 (Ex.D2) came into existence aGer the impugned sale deed dated 05.06.1985 (Ex.P4) and thus, conferred no co- sharer status at the 0me of sale. As to sale deed (Ex.D3) dated 22.10.1984, though defendant No.1 Hoshiar Singh became co-sharer in Khewat Nos.71 to 74, but he subsequently purchased the suit land jointly with two strangers, namely Smt. Vidya and Smt. Savitri. Consequently, his earlier qualifica0on as a co-sharer stood neutralized, and under Sec0on 21 of the Punjab Pre-emp0on Act, he was to be treated as a stranger. The appellate court relied on Garib Singh v. Harnam Singh, 1971 PLJ 579 (Full Bench). NEETIKA TUTEJA 2025.11.11 16:47 I attest to the accuracy and integrity of this document Page 2 of 8 RSA-318-1993 (O&M) 6. Earlier High Court Order and Supreme Court Remand: Defendants