Punjab-Haryana High Court
Inder Singh And Ors. vs Om Parkash And Ors. on 15 September, 1989
Equivalent citations: (1990)97PLR112
JUDGMENT G.R. Majithia, J.
1. The vendee has come up in Regular Second Appeal against the judgment and decree of the First Appellate Court which on appeal reversed that of the trial judge and decreed the suit for possession by pre-emption filed by the plaintiffs/respondents.
2. The undisputed facts are : Vas Dev was owner of land mearuring 34 kanals 2 marlas comprised in Khewat No. 240/237, Khatoni No. 395, Rectangle No, 133, Killa Nos. ;5, 6, 15 and Rectangle No. 134, Killa Nos. 10 and 11 as entered in Jamabandi Ex. P3 for the year 1981-82. He transferred the land measuring 19 kanals 4 mar/as comprised in Khewat No. 240/237, Khatoni No. 395, Rectangle No. 133 Killa Nos. 5(4-16), 6(6-18) and 16(7-10) vide sale deed dated January 18, 1984 to Om Parkash and others (hereinafter referred to as the plaintiffs) and vide sale deed dated May 17, 1985, he sold the land measuring 14 kanals 18 marlas comprised in Khewat No. 240 Khatauni No. 395, Rectangle No. 134 Killa Nos. 10(8-0) and 11(6-18) to Inder Singh and others (hereinafter referred to as the vendees).
3. The plaintiff's filed a suit for possession by pre-emption regarding the land sold to the vendees on the ground that they were co-sharers in the suit land. The trial court negatived their claim and dismissed the suit but the First Appellate Court reversed the judgment of the trial judge and decreed the suit. Hence this appeal.
4. Section 15(1) of the Punjab Pre-emption Act (for short the Act) lays down the right of pre-emption with regard to agricultural land and village immovable property on certain specified persons and that too, with reference to sale by a particular type of persons. The first type of person is a sole owner. The second type of person is a co-sharer and the sale is of a share by him out of the joint land. Clause (b) of Sub Section (1) of Section 15 of the Act provides that where the sale is of a share out of joint land or property and is not made by all the co sharers jointly, the right of pre-emption vests in other co-sharers, it wilt be useful to reproduce the relevant portion of Section 15(1) (b) of the Act ;
"15. (1) The right of pre-emption in respect of agricultural land and village immovable property shall vest:
(b) Where the sale is of a share out of joint land or property and is not made by all the co-sharers jointly:-
Fourthly in the other co-sharers."
5. A co-sharer is the person, who has sharer in the community of interest whether the . same is fixed or flexible along with others in a joint property held by them all. When land or property belongs to two or more persons jointly and is undivided, each of them js a co-sharer with the other in the joint property. The concept of joint property used in Section 15 (1) (b) of the Act, presupposes that it belongs to a person or persons other than the vendor. In the instant case Ves Dev was the sole owner of land measuring 34 kanals 2 marlas. He transferred specified field numbers in Rectangle No. 133 Killa No. 5 (4-16), 6(6-18) and 15(7-10) to the plaintiffs vide sale deed dated January 18,1984 and put them in possession thereof. He was also owner of another Rectangle No. 134 bearing separate killa numbers, namely, 10(8-0) and 1! (6-18) and transferred the same to the vendees vide sale deed dated May 17, 1985. The purchaser of a share of specified killa numbers in specified rectangle will not become a co-sharer in the Khewat. The plaintiffs did not purchase an undivided share of the joint land. Khata is equivalent to a Khewat and in the matter of finding out for the exercise or preferential right of pre-emption, the status of a party as a co-sbarer has to be seen in a Khata or Khewat. In the present case, the plaintiffs are purchasers of specified field numbers in specified rectangle only and not in the whole joint land and they will not become co-sharers in the Khewat or Khata. The word co-sharer in the context of preemption law denotes a person who holds a share or shares in the whole of the property or properties of which another share or other shares were the subject matter of sale. The plaintiffs will thus not become co-sharers. The matter is not res integra. In Lachhman Singh Sunder Singh v. Pritam Chand Kripa Mal and other, (1970) 72 P.L.R. 341, it was held thus :
"Where a co-sharer sells to the plaintiffs his one-fourth share out of a defined part of the joint land of the co-sharers but not out of the whole of their joint land, the sale is not "of a share out of joint land" within Section 15 (I) (b), Fourthly and the plaintiffs do not become co sharers with the co-sharers in the joint land and have, therefore, no preferential right of preemption in regard to the sale of a part of his share made subsequently by another co-sharer to the defendant. The plaintiffs have a fractional share in defined and specific portion of joint hold of the co-sharers but not in the total area of their joint land, While they become joint owners or co-sharers of the land of specific portion sold, with the original co-sharer, they do not bacoma co-sharers with them in the other or the remaining joint land of original co-sharers."
6. The learned counsel for the respondents laid stress on Bannu v. Ram Sarup, 1981 P.L.J. 205 to support the judgment under challenge and submitted that the plaintiffs are Co-sharers. In this case, one Ram Chander sold land measuring 21 square yards out of 4 kanal 2 marlas bearing Khasra No. 100, Khatauni No. 204, Khasra No. 99/4 vide sale deed May 19, 1966. Ram Sarup filed a suit for possession by pre-emption on the ground being a co-sharer. The Bench observed that the pre-emption was a co-sharer in the Khewat. The ratio of this case has no applicability to the fact of the instant case. The entire Khewat comprised of 4 kanal 2 marlas of land. The vendor had sold 21 square yards out of the total land in the Khewat. The other co-sharers rightly claimed superior right of pre-emption. The facts of the instant case are wholly distinguishable and the ratio of the judgment in Bhartu's case is inapplicable on the facts of the instant case. The matter is squarely covered by Lachhman Singh's case referred (supra).
7. Thus, for the reasons recorded above, the appeal is allowed The judgment and decree of the First Appellate Court is set-aside and that of the trial court is restored. The plaintiffs' suit for pre-emption is dismissed. However, in the peculiar circumstances of the case, the parties are left to bear their own costs.