O&M) Hoshiar Singh (deceased) through LRs v. Mahender and Others
Case Details
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA-319-1993 (O&M) Hoshiar Singh (deceased) through LRs . . . . 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 defendants have preferred the present Regular Second Appeal against the judgment & decree dated 24.10.1992 passed by the learned First Appellate Court of Addi1onal District Judge, Rohtak, whereby the appeal filed by the plain1ffs–Mahender and others (respondents herein) was allowed, reversing the judgment of the Trial Court of sub-Judge 1st Class, Jhajjar dated 11.06.1990, dismissing their suit for possession by way of pre-emp1on. 2.
Facts
Factual Background : The plain1ffs are co-sharers in the suit land comprised in Khewat Nos. 71 to 75. Said land was originally owned by several
Legal Reasoning
preferred the present appeal against above reversal. This Court ini1ally, 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-emp1on. 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 respec1vely, 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-emp1on must subsist only up to the date of decree of the trial court. 8. Submissions in Second Appeal : Assailing the reversal, learned counsel for the appellant has contended that the suit was not maintainable for non-impleadment of the vendor Smt. Chitra Bai, who was a necessary party. It is urged that in the absence of the vendor, the decree of pre-emp1on could not have been passed. 9. Per contra, learned counsel for the respondents submits that in a suit for pre-emp1on, the controversy is essen1ally between the pre-emptor and the vendee, and that the vendor, having divested her 1tle, is neither a necessary nor a proper party. The learned First Appellate Court, it is argued, rightly decreed the suit applying the law as declared by the Hon’ble Supreme Court. 10. This Court has considered rival submissions and perused the record. 11. 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-emp1ve right is the date of decree of the trial court. In the present case, the sale deed (Ex.D2) sought to be pre-emp1ed was executed on NEETIKA TUTEJA 2025.11.11 16:47 I attest to the accuracy and integrity of this document Page 3 of 8 RSA-319-1993 (O&M) 22.10.1984, and the decree was passed by the court of first instance on 11.06.1990 i.e., both prior to 1995 Amendment. Therefore, the plain1ffs’ right to pre-empt remained intact. 12. The finding of the Appellate Court that the defendant could not claim co-sharership on the basis of subsequent transac1ons dated 05.06.1985 (Ex.DW7/A), and 16.05.1986 (Mark B) is also well founded. The right of pre- emp1on crystallizes on the date of sale sought to be pre-empted. Any acquisi1on of status thereaDer is of no avail. 13. As regards the legal posi1on under the Punjab Pre-emp1on Act, 1913, the Hon’ble Supreme Court in Atam Prakash (supra) declared Sec1on 15(2) as ultra vires, holding that the classifica1on between sales made by male and female vendors was arbitrary and viola1ve of Ar1cle 14. The said declara1on of law was directed to apply even to pending proceedings. Consequently, the First Appellate Court rightly held that the sale effected by Smt. Chitra Bai, though a female vendor, was open to pre-emp1on. 14. As regards non-serving of no1ce to the plain1ffs prior to sale, Sec- 1on 19 to 21 of the Punjab Pre-emp1on Act, are relevant in this regard, which reads 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-emp1on, he may give no1ce 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 no1ce shall be given through any Court within the local lim- its of whose jurisdic1on 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- Page 4 of 8 NEETIKA TUTEJA 2025.11.11 16:47 I attest to the accuracy and integrity of this document RSA-319-1993 (O&M) ate. 20. No4ce by pre-emptor to vendor. – The right of pre-emp1on of any person shall be ex1nguished unless such person shall, within the period of three months from the date on which the no1ce under sec1on 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 no1ce for service on the vendor or mortgagee of his inten1on to enforce his right of pre-emp1on. Such no1ce shall state whether the pre-emptor accepts the price or mount due on the foo1ng of the mortgage as correct or not, and if not, what sum he is willing to pay. When the Court is sa1sfied that the said no1ce has been duly served on the vendor or mortgagee, the proceedings shall be filed. 21. Suits for pre-emp4on. – Any person en1tled to a right of pre-emp1on may, when the sale or foreclosure has been completed, bring a suit to enforce that right.” 15. The effect of non-serving of no1ce to the plain1ffs prior to sale, in the light of above provisions i.e., Sec1on 19 to 21 of the Punjab Pre-emp1on 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 no1ce to all persons having right of pre-emp1on of the price at which he was willing to sell land. Sec1on 20 provides that any person in receipt of no1ce un- der Sec1on 19 ex1nguishes his right unless he expresses his inten1on to exer- cise his right of pre-emp1on within a period of 03 months from the date of re- ceipt of no1ce under Sec1on 19. Thus, statute casts duty upon the plain1ffs, enforcing right of pre-emp1on to plead that there was no no1ce from vendor under Sec1on 19. In case no1ce under Sec1on 19 was served on pre-emptor, he is to respond to the same within the 1me period prescribed to save his right from being ex1nguished under Sec1on 20 of the 1913 Act. Court prior to de- Page 5 of 8 NEETIKA TUTEJA 2025.11.11 16:47 I attest to the accuracy and integrity of this document RSA-319-1993 (O&M) creeing the suit of pre-emptor has to return finding that Sec1on 19 was not complied with, or if complied with, vendor executed sale deed despite the pre- emptor expressing his inten1on to pre-empt the sale deed.” 16. The court then referred to the observa1ons 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-emp1on 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 no1ce. 17. In the present case, plain1ffs i.e., respondents herein, specifically pleaded in para N: 3 of the plaint that prior to the sale dated 22.10.1984, no no1ce whatsoever was given to them as required under law. In corresponding para of the wri%en statement, defendant i.e. appellant herein did not specifically deny the said fact and rather, pleaded that it was not required to send a no1ce to the plain1ffs. 18. Meaning thereby, defendant categorically admi%ed that no no1ce was served upon the plain1ffs prior to the sale dated 22.10.1984 (Ex.D2), though the said no1ce was in fact mandatory under sec1on 19 of the Punjab Pre-emp1on Act. Thus, statutory non-compliance of no1ce under Sec1on 19 is proved, and so, plain1ffs’ right could not be ex1nguished under Sec1on 20. 19. The last conten1on as raised by Ld. counsel for the appellants-de- fendants is regarding the non-joinder of Smt. Chitra Bai i.e. vendor as a party to the suit. This court in RSA No.947 of 1995 decided on 03.11.2025 1tled “Mansa Ram versus Jasmer Singh” has held that where the plain1ff has based the suit on lack of no1ce under Sec1on 19 of the 1913 Act and the defendants specifi- cally plead vendor-related facts like his par1cipa1on/waiver, then presence of the vendor is, at the very least, desirable, and may become necessary to effec- NEETIKA TUTEJA 2025.11.11 16:47 I attest to the accuracy and integrity of this document Page 6 of 8 RSA-319-1993 (O&M) 1vely 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 dis1nguishing “necessary” and “proper” par1es. 20. In Mansa Ram’s case (supra), the defendant (vendee) had specifically pleaded that the plain1ffs (pre-emptor) had nego1ated and finalized the bargain with the vendor Sarwan Singh, and therefore were estopped from pre-emp1ng. Based on evidence, this conten1on was found to be duly proved. It was in this factual matrix that this court held as under: “21. If the pre-emptor par=cipated in or brought about the sale, insistence on a pre-sale no1ce becomes academic, as the object of Sec1on 19 is to apprise a poten1al pre-emptor. Where the pre-emptor is himself a moving force behind the transac1on, the founda1on of the plea (want of no1ce) collapses. 22. Once such par1cipa1on is established, the doctrine of waiver or estoppel squarely applies. A pre-emptor who himself arranges, facilitates, or consents to a sale cannot thereaDer turn around to displace that very transac1on by invok- ing a right of preference. The principle that the right of pre-emp1on can be de- feated by any legi1mate 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- a1ons of mere passive knowledge, not with proven ac1ve nego1a1on and facil- ita1on by the pre-emptor himself.” 21. The facts of present case are en1rely dis1nguishable from Mansa Ram’s Case (supra), in as much, in present case, there is no plea of vendor’s par1cipa1on, directly or indirectly, in the sale dated 22.10.1984 (Ex.D2), Be- sides, statutory non-compliance of no1ce under Sec1on 19 is admi%ed by the defendant – appellant. In the circumstances, the objec1on as to non-implead- ment of the vendor as a party to the suit, is misconceived and unsustainable, and it does not affect the right of plain1ffs 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-319-1993 (O&M) 22. Conclusion : Based on the above discussion, it is found that plain1ffs had a valid subsis1ng right to pre-empt as co-sharers. Non- impleadment of vendor is not fatal in the facts and circumstances of the above case; and the statutory no1ce under Sec1on 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. Par1es to bear their own costs. 11.11.2025 Nee$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
co-sharers including Smt. Chitra Bai. Ac1ng through her a%orney Smt. Manwa1, Chitra Bai sold her share in the suit land detailed in para 1 of the plaint to defendant–appellant Hoshiyar Singh by a registered sale deed dated 22.10.1984 for considera1on of ₹30,000/-. The plain1ffs ins1tuted the present suit claiming NEETIKA TUTEJA 2025.11.11 16:47 I attest to the accuracy and integrity of this document RSA-319-1993 (O&M) possession of the suit land by way of pre-emp1on, asser1ng their superior right as co-sharers. They alleged that no no1ce was served upon them before the sale, which, according to them, was mandatory in law. 3. The defendants contested the claim on mul1ple grounds. They denied that any no1ce was required to be given prior to the sale. It was further pleaded that the vendor Smt. Chitra Bai had inherited the property from her father Baljeet Singh, and therefore, under Sec1on 15 of the Punjab Pre-emp1on Act, 1913, the sale executed by her could not be pre-empted. 4. Trial Court Findings : ADer framing issues and appraising the evidence on record, the trial Court held that the plain1ffs had failed to establish a valid right of pre-emp1on and accordingly dismissed the suit vide judgment dated 11.06.1990. 5.1 First Appellate Court Findings : On appeal filed by the plain1ffs, the first Appellate Court no1ced that the learned Trial Court had overlooked the binding pronouncement of the Hon’ble Supreme Court in Atam Prakash v. State of Haryana, 1986 (1) PLR 329, wherein Sec1on 15(2) of the Punjab Pre- emp1on Act was declared uncons1tu1onal being viola1ve of Ar1cle 14 of the Cons1tu1on. The effect of the said ruling was that the dis1nc1on between sales made by male or female vendors ceased to exist, thereby making such sales equally open to pre-emp1on. 5.2 The First Appellate Court further held that the defendant’s claim of being a co-sharer based on subsequent sale deeds dated 25.10.1985 and 16.05.1986 (Ex.DW-5/A) was untenable, since both transac1ons were subsequent to the sale dated 22.10.1984 sought to be pre-empted. The defendant, therefore, could not claim the status of co-sharer as on the relevant date. In view thereof, the Appellate Court allowed the appeal and decreed the plain1ffs’ suit on 24.10.1992. Page 2 of 8 NEETIKA TUTEJA 2025.11.11 16:47 I attest to the accuracy and integrity of this document RSA-319-1993 (O&M) 6. Earlier High Court Order and Supreme Court Remand: Defendant