High Court of Punjab And Ha D Haryana
Case Details
Page 1 of 10 10 (cid:1) IN THE HI E HIGH COURT OF PUNJAB AND HA D HARYANA AT CHANDIGARH Ajit Singh ingh Waryam Singh RSA-218-1992 (O&M) of pronouncement: 27.02.2025 Date of Vs. ...Appellant(s) ...Respondent(s) CORAM: HON’BLE MS. JUSTICE NID NIDHI GUPTA Present:- Mr. Rakesh Gupta, Advocat for the appellant. ocate Mr. Malkeet Singh, Advoca Mr. Mohit Potalia, Advocat for respondent No.1. ocate with ocate NIDHI GUPTA, PTA, J. *** The defendant No.1 is in his is in Second Appeal before this Court against inst the judgment and decree dat he dated 09.01.1992 passed by the learned Addit dditional District Judge, Ambala nd ala whereby the judgment and decree dated 3 ted 31.01.1991 passed by the learne ala arned Sub-Judge, III Class, Ambala City dismissing ssing the suit of the plaintiff, has be he s been reversed and appeal of the respondent/pl t/plaintiff has been decreed. 2. The parties shall hereinafte nafter be referred to as per their status before ore the learned trial Court i.e. the a he appellant shall be referred to as the ‘defend fendant no.1’; and the respondent dent shall be referred to as ‘the plaintiff’. Vide Vide order dated 30.01.1992 exec execution of the judgment and decree dated 0 ted 09.01.1992 was stayed by this C is Court till further orders. It has further been en stated by learned counsel for t
Facts
for the defendant No.1 that the defendant no. no.1 is presently in possession of th of the suit property. SUNENA 2025.02.28 12:32 I attest to the accuracy and integrity of this document 3. Brief facts of the case ar Page 2 of 10 10 (cid:1) - are that the plaintiff being co- sharer, filed th d the suit for recovery of possess of session by way of pre-emption of agricultural su suit land as described in the plai os. plaint, comprising in khewat nos. 250, 291, 251 251, 293, and 307. The plaintiff alle in alleged that he was co sharer in the suit land a nd at the time of execution of the 07 the registered sale deed no.7807 dated 17.2.19 1988 by the defendant no.2 in the .1. the favour of the defendant no.1. He was always ways ready to purchase the suit land he land from defendant no.2 but the defendant no. t no.2 had not acceded to his reques he quest and sold the suit land to the defendant no t no.1 in view to defeat the pre tiff re-emptory right of the plaintiff through above bove said registered sale deed date he ted 17.2.1988 No.7807 and the plaintiff has ac as accrued his right to pre-empt the the sale deed. 4. Upon notice, the defend fendant No.1/appellant herein appeared and and filed written statement, resist sisting the suit by denying that plaintiff was co-sharer in the suit land; and st stating that the suit is bad for partial preemp emption. 5. On the basis of pleadings o es ngs of the parties, following issues were framed: ed:- “1. Whether the plaintiff has go tial got a superior and preferential right to pre emption sale in questi uestion?OPP 2. Whether the suit is not maintai intainable in present form?OPD 3. Whether the suit is bad for part partial pre-emption?OPD 4. Whether the plaintiff has n - as not deposited one fifth pre- emption money in time?If so, to w to what effect?OPD 5. Whether the suit is barred by tim by time?OPD SUNENA 2025.02.28 12:32 I attest to the accuracy and integrity of this document 6. Whether the plaintiff is estopp Page 3 of 10 10 (cid:1) by stopped to file the present suit by his own act and conduct?OPD 7. Whether the plaintiff has recl its reclaimed the suit land after its purchase, if so at what expense an se and to what effect?OPD 8. Whether the defendant has on has incurred the expenses on purchases on non-judicial stamp p es mp papers on registration charges and on scribe etc. If so to what eff t effect?OPD 9. Relief.” 6. On the basis of arguments ents and oral and documentary evidence brou brought on record by the parties, th s, the learned trial Court decided the Issue no.1 no.1 against the plaintiff and in favo favour of the defendant holding that as per Ex Ex.P-1/ Jamabandi for the year 19 r 1983–84, the plaintiff is shown as co-sharer in the suit property at the time o e of execution of sale deed; and that as per th er the revenue record the plaintiff intiff, not being the original co- sharer in the the suit land, has also stepped int into the same capacity as the defendant no. no.1. Issue no.2 was decided agai against the defendant being not pressed. Issue ssue no.3 was decided against the the plaintiff and in favour of the defendant hol holding that the suit is bad for pa r partial pre-emption as plaintiff had admitted ttedly excluded Khasra no. 38/24/ 24/19(0-2), 1981(1-1) from the Suit land with without any explanation. Issue nos nos. 4, 5, and 6 but decided in favour of the the plaintiff and against the defen fendant; and Issue nos.7 and 8 went in favou avour of the defendants and again gainst the plaintiff. Accordingly, vide judgmen ment and decree dated 31.01.1 01.1991the learned trial court dismissed the the suit of the plaintiff as plaintiff c tiff could not establish himself as SUNENA 2025.02.28 12:32 I attest to the accuracy and integrity of this document co-sharer in th in the suit property; and as the suit suit was also bad for partial pre- emption. 7. The plaintiff filed appeal b al before the learned Additional Page 4 of 10 10 (cid:1) District Judge dge, Ambala which was allowed ed vide judgment and decree dated 9.1.199 .1992, reversing the findings of the the learned trial court in respect of Issues no.1 no.1 and 3. The ld. First Appellate ate Court held that plaintiff had asserted his c his co-sharership in the suit land nd in the plaint; as also in his evidence as PW as PW1; and that no question was d as directed at the plaintiff in this regard during ring cross-examination by the he defendant no.1/DW1; and therefore, the the plaintiff had been able to prov prove that he had superior right to pre-empt t pt the impugned sale in respect o ct of land comprising in khewat no.250. As reg s regards Issue no.3, the learned 1 d 1st Appellate Court held that the suit was n as not bad for partial pre-emption tion. Accordingly, the judgment and decree of e of the learned trial Court was set set aside and suit of the plaintiff was decreed t ed to the extent that he was entitle titled to pre-empt the impugned sale on payme yment of total amount of Rs.37,27 7,275/- by 31.1.1992. In case of default, the su e suit shall stand dismissed. Hence ence, present second appeal by the defendant dant no.1. 8. Learned counsel r for the defendant No.1 very persuasively s ly submits that as per the establi ablished position in law, partial pre-emption c on could not have been permitte itted. It is submitted that the learned Appel ellate Court erred in recording a g a finding in favour of the pre- emptor that h at he was a co-sharer in the suit l uit land. The said finding is not SUNENA 2025.02.28 12:32 I attest to the accuracy and integrity of this document Page 5 of 10 10 (cid:1) proved from t m the evidence on record. There is re is no material evidence which can support th rt this finding. The suit was bad fo d for partial pre-emption as the pre-emptor ha r had left the suit land comprising sing in Khasra no. 38/24/19(0-2), 1981(1-1). Be Besides that the pre-emptor had had not claimed the rights of Shamlat Deh eh which were sold by the vendo ndor. Since the rights were not pre-empted w d which were attached to the lan e land so the suit was bad for partial pre-em emption. A bare perusal of the pla e plaint and the sale deed would show that the the rights which were attached wit with the suit land were not pre- empted. The l he ld. Appellate Court has erred in d in deciding issue Nos.1 and 3 against the ap e appellant and in favour of the plain plaintiff. Admittedly, plaintiff has not purchased ased the entire holdings in the su e suit land; and as held by our Court in 1970 970 PLJ 198 and 1970 PLR 341, the the plaintiff does not become co- sharer in the the joint estate unless he purchas hases the entire share of a co- sharer. Therefo erefore, these issues no.1 and 3 des deserve to be returned in favour of the appellan ellant and against plaintiff. 9. In support of his conten ntentions, the learned counsel relies upon ju
Legal Reasoning
judgments of this Court in “Gang anga Singh Vs. Narinjan Singh” Law Finder Do r Doc ID # 62298, and in “Shiv Ram am & Others Vs. Shree Des Raj” Law Finder Do r Doc ID # 75630. 10. Per contra, learned cou counsel for the respondent No.1/plaintiff tiff submits that admittedly the pl e plaintiff was owner of part of the suit land nd; and was therefore, co-sharer in er in the suit land. As such, the plaintiff was e as entitled for pre-emptory decree cree in his favour as he had first SUNENA 2025.02.28 12:32 I attest to the accuracy and integrity of this document right over the r the suit property in view of his f his admitted ownership. It is Page 6 of 10 10 (cid:1) accordingly su submitted that there is no error in or in the judgment passed by the learned First irst Appellate Court. Learned coun ounsel relies upon three-Judge Bench judgme gment of this Court in “Lachhman man Singh Vs. Pritam Chand & Another” Law Law Finder doc ID # 58679, wherein rein it has been held as under:- “Punjab Pre-emption Act, 1913, 13, Section 15 (1)(b) Fourthly - "Co-sharers" - Meaning of - - Purchaser of specific killa numbers in specified rectangles gles out of joint land such - In terms of their sale deed, purch purchaser do not have a right beyond the share of land sold to d to them - They do not become co-sharers in the remaining joint l oint land.” 11. Learned counsel according dingly prays for dismissal of the present appea peal. 12. 13. No other argument is made ade on behalf of the parties. I have heard learned co counsel for the parties and perused the ca e case file in great detail. 14. The short question to be be determined in the present case is wheth hether the suit of the plaintiff/pre /pre-emptor was bad for partial pre-emption. on. The undisputed facts on rec record are that, although in Jamabandi for i for the year 1983-84/Ex.P-1, the p he plaintiff is shown as co-sharer in the suit lan land, however he was also a vend vendee in the suit land prior to execution of of the sale deed dated 17.2.1988 1988. As such he was similarly placed as def defendant no.1. Moreover, admit dmittedly, the plaintiff had not purchased the the whole of the suit land. As suc such, the plaintiff has not filed SUNENA 2025.02.28 12:32 I attest to the accuracy and integrity of this document the suit with r ith regard to entire land involved in ed in impugned sale deed dated Page 7 of 10 10 (cid:1) 17.2.1988 as a as admittedly, the plaintiff has left left the suit land comprising in Khasra no. 38 . 38/24/19(0-2), 1981(1-1). Howev wever, the ld. Appellate Court below has hel held that the plaintiff is certainly e nly entitled to pre-empt the sale with regard t rd to his portion of land in wh which he was co-sharer. The contention of of defendant/appellant to the effe effect that the Plaintiff could not be said to hav have superior right to pre-empt the t the impugned sale as suit itself was bad for pa or partial pre-emption, was rejected cted by the learned court below by holding th g that the Pre-emptor could cla claim a superior right of pre- emption in res n respect of that rectangle, a share w are whereof had been purchased by pre-emptor or at an earlier point of time. 15. However, the said reason asoning is flawed as the legal position in thi n this regard is now very clear. By By virtue of the amendment in the Preempti ption Act, the co-sharer has los lost his right of preemption. Besides, it ha has been held in numerous ju s judgments that right of pre- emption is a w s a weak right. In this regard, refer eference may firstly be made to recent judgme gment of the Hon’ble Supreme Cou Court in “Abdul Matin Mallick v. Subrata Bhatt hattacharjee (Banerjee) & Others hers” (SC) : Law Finder Doc Id # 1984040, wh wherein, it has been held that: – “6. At this outset, it is required to ed to be noted that pre-emptors submitted the application befor before the learned Trial Court under Section 5 of the Act, 1955, 955, in respect of the share sold by their sisters. Therefore, the con e contesting respondents herein - the original pre-emptors sought t ght to exercise their right as pre- emptors under the provisions of s of the Act, 1955. The right of SUNENA 2025.02.28 12:32 I attest to the accuracy and integrity of this document Page 8 of 10 10 (cid:1) the pre-emption has been ela n elaborately dealt with and considered by a Four Judge Benc Bench of this Court in the case of Bishan Singh v. Khazan Singh, ngh, AIR 1958 SC 838, wherein at paragraph 11, it is observed and h and held as under: - "11. ... (1) The right o the thing sold but a right to be sold. This right is called (2) The pre-emptor has a s right to follow the thing substitution but not of re takes the entire bargain an original vendee. (4) It is a the property sold and not (5) Preference being the ess must have a superior right person substituted in his pla weak right, it can be defeat such as the vendee allowing equal right being substitute to ght of pre-emption is not a right to ht to the offer of a thing about to to ht. lled the primary or inherent right. ial s a secondary right or a remedial thing sold. (3) It is a right of of tor f re-purchase i.e. the pre-emptor the in and steps into the shoes of the is a right to acquire the whole of of ld. not a share of the property sold. tiff e essence of the right, the plaintiff right to that of the vendee or the the ery is place. (6) The right being a very ds, efeated by all legitimate methods, or wing the claimant of a superior or ituted in his place." 6.1 Thus, as observed and held b eld by this Court in the aforesaid judgment, the right of pre-empt ju emption is "a very weak right". That being the character of the rig he right, any provision to enforce such a right must, thus, be stric strictly construed. [Barasat Eye Hospital and Ors. (supra)]” (Emphasis added) 16. From the above ruling, it , it is clear that not only is pre- emption a we weak right, but partial pre-empt mption is impermissible. In the present case, se, admittedly, the prayer of the pla e plaintiff was for the entire land, however, he c he could not pre-empt the entire s ire suit land because he is not a co-sharer in th in the entire land. 17. In this regard, reference nce may also be made to the judgment reli relied upon by learned counsel f el for the appellant in case of Ganga Singh ( gh (supra), wherein it is held that: at: – SUNENA 2025.02.28 12:32 I attest to the accuracy and integrity of this document Page 9 of 10 10 (cid:1) “.....The lower appellate Court as rt as well as the learned Single Judge have taken the view that su Ju at such a suit would be barred as a pre-emptor cannot sue for pa or partial pre-emption the rule being that in pre-emption there here is substitution of the pre- emptor for the vendee and the there is no retransfer of the property. The matter is not res in es integra. It is concluded by the Full Bench decision of the Lahore ore High Court in Ghulam Qadir and others v. Ditta and others, A ers, AIR 1945 Lahore 184 and a Division Bench decision of that C at Court in Tirath Ram v. Dina Nath deceased, through his repr representatives and others, ILR (1933) 14 Lahore 810. Mr. Sarin, h rin, however, drew our attention to cases decided by Oudh High Co gh Court, the latest being Paltan Singh v. Pt. Prag Narain and o nd others, AIR 1945 Oudh 167, wherein it has been held that ther t there is nothing wrong in a pre- emptor suing for pre-emption of n of a part of the property on payment of entire sale considerat deration. With utmost respect to the learned Judges who decided ided these cases, we are of the view that they do not lay down th wn the correct rule of law. In the first place, it has not been broug fir rought to our notice what is the law of pre-emption law prevaili vailing in Oudh. In the second place, so far as the pre-empt emption law in the Punjab is concerned, one rule is firmly se ly settled that the right of pre- emption is a right of substitution. tion. In other words, the name of the vendee is rubbed from the sa e sale deed and that of the pre- emptor is introduced therein. The . There is another way of looking at the matter. Supposing, the vend vendee purchases property for a particular purpose and by permit ermitting partial pre-emption on payment of the whole considerati eration he is left with part of the property which does not serve his e his purpose, he is unnecessarily bound down to that part of the p the property and it would be no argument to say that there is no l s no loss to the vendee. From the SUNENA 2025.02.28 12:32 I attest to the accuracy and integrity of this document Page 10 of 10 10 (cid:1) various considerations which hav have to be taken notice of while dealing with a claim of pre-emp emption and as already stated, the right of pre-emption being a r g a right of substitution, the very basis of that right is destroyed yed by permitting a decree for partial pre-emption though on p on payment of the entire sale consideration. The view we have ave taken is amply supported by authorities. For the reasons reco recorded above, these appeals fail and are dismissed. As there fa ere is no representation for the respondent, there will be no order order as to costs.” 18. The respondent-plaintiff ca iff can derive no benefit from the relied upon ju n judgment in case of Lachhman S an Singh (supra) as the same is distinguishable able on facts and law. 19.
Decision
In view of the above note oted, factual and legal position, the present ap t appeal is allowed. The impugned ned judgment and decree dated 9.1.1992 of th f the ld. Lower Appellate Court is he hereby set aside. 20. Pending application(s) if an if any also stand(s) disposed of. 27.02.2025 Sunena (Nidhi Gupta) Judge Whether spea Whether repo peaking/reasoned: eportable: Yes/No Yes/No SUNENA 2025.02.28 12:32 I attest to the accuracy and integrity of this document