Punjab-Haryana High Court
Avtar Singh vs Ajit Singh @ Ranjit Singh And Anr. on 19 May, 1994
Equivalent citations: (1994)108PLR30
JUDGMENT S.K. Jain, J.
1. Smt. Harbans Kaur respondent No. 2 herein sold 8 kanals 6 Marlas of agricultural land comprised in Khewat No. 56 min, Khatauni No. 90, Khasra No. 24/19 (8.-0) in favour of Avtar Singh appellant herein for a sale consideration of 45,000/-. This sale was pre-empted by Ranjit Singh respondent No.1 herein vide Civil Suit No. 833 of 1990 instituted on 15.64990 claiming superior right of pre-emption being co-sharer in the suit land the suit was contested by defendant No, 1 on various grounds and the lis was fought between the parties on the following issues:-
1. Whether the plaintiff has superior right of preemption to pre-empt the sale in question, if so to what effect? OPP
2. Whether the suit is not maintainable as alleged in para No. 1 of the preliminary objections of written statement? OPP.
3. Whether the suit of the plaintiff is barred by time? OPD.
4. Whether the plaintiff has not deposited the l/5th pre-emption amount in time? OPD.
5. Whether the suit is of the plaintiff is barred by principle of estoppel? OPD.
6. Whether the defendant No.1 has spent an amount of Rs. 3000/- for improvement of suit land as alleged? OPD.
7. Relief?
2. The learned Senior Sub-Judge Kurukshetra, vide his judgment and decree dated 23.12.1991 decreed the suit of the Plaintiff. The vendee Avtar Singh challenged the above said judgment and decree vide Civil Appeal No. 33 of 1992 instituted on 31.1.1992. Learned District Judge, Kurukshetra vide his judgment and decree dated 8.5.1992 dismissed the appeal.
3. It is that judgment and decree of the first Appellate Court which has been challenged by the Vendee in this Regular second Appeal and which requires my examination of its sustainability.
4. I have seen the pleadings in the suit, the evidence adduced by the parties in the suit and the judgments of both the Courts below.
5. I can possibly have no quarrel with the submission of the learned counsel for the appellant that the expression 'other co-sharers' in clause 'Fourthly' of Section 15(1)(b) refers to only those co-sharers who do not fall under clause 'First' or 'Secondly' or 'Thirdly'; of Section 15(1) (b). Consequently, where the co-sharers claiming right of preemption fell either under clause 'first' or under clause 'Secondly' of Section 15(1) (b) they being clearly outside the scope of clause 'Fourthly' suit by them for pre-emption was not maintainable. It has been so held by the Supreme Court in Jagdish v. Nathi Mal Kajriwal, A.I.R. 1987 S.C. 68.
6. Learned counsel for the appellant then urged that the sale in the case in hand is by a female and the matter was governed by Section 15(2) of the Act and the co-sharer was not entitled to pre-empt the sale made by a female. This matter now stands concluded by a Single Bench of this Court in Mange Ram v. Tulsi Ram, 1989 P.L.J. 207, wherein reliance had been placed on the ratio laid down in Nand Kishore and Ors. v. Avtar Singh and Ors., 1988 PLJ 47, and it was held that when a sale by a female and a male, a co-sharer is entitled to pre-empt the sale made by both under Section 15(1) as Section 15(2) has been declared to be ultra vires, Section 15(1) applies to all sales, whether made by a female or a male and Section 15(2) was an exception to it when sale was made by a female, who had succeeded the land through her husband or through her son, in case the son had inherited the land from his father or was of land which she had succeeded through her father. The right of pre-emption under both the circumstances was given to certain named relations. The right to pre-emption under Section 15(2) of the Act had been struck down with the result that that Section stands wiped out and under Section 15(1) of the Act the pre-emptor as a co-sharer is entitled to pre-empt the entire sale. In Bikha Ram v. Ram Sarup and Ors., (1992-1) 101 P.L.R. 49 S.C, it has been held that a co-sharer is entitled to claim right of pre-emption under clause "Fourthly" of Section 15(1) (b) of the Act even if he is related to the Vendor.
7. Still another argument has been raised by the learned counsel for the appellant that on the date when the appellant had paid the amount to the vendor, the pre-emptor had paid back the same amount of loan to the Umri co-operative and Credit service society Ltd., Umri which fact clearly shows that the pre-emptor had knowledge of the sale and rather he was instrumental in getting the sale deed executed and registered in favour of the appellant. I do not find any substance in this argument. Even if the case of the appellant is taken at its face value and it is considered for the sake of argument that the pre-emptor had deposited some amount for the purpose of discharging the loan on 4th July 1989, how could it be presumed that the pre-emptor had the knowledge of the sale in question and that he was instrumental in getting the sale deed executed and registered. There is not even an iota of evidence on record to show that Ranjit Singh pre-emptor had cordial relations with Smt. Harbans Kaur respondent and that he had received any amount from her.
8. The appellant had filed an application under Order 41, Rule 27 read with Section 151 of the Code of Civil Procedure, for placing on record by way of additional evidence, a certificate issued by Umri Co-operative and Credit Service Society Ltd. Umri. This application has been contested by Ranjit Singh respondent. He has filed a reply in the form of affidavit. According to him, he had deposited an amount of Rs. 15,992/- on 4.7.1989 in the Society in his own account as well as in the account of his brother Karnail Singh. On 12.7.1989 he had received an amount of Rs. 8,810/- from the society for the purchase of fertilizer and seeds etc. The said amount had been paid back along with interest to the society. These transactions between Ranjit Singh pre-emptor and the society are of usual nature. There is nothing on record to show that such transactions had any connection with the present sale. Therefore, the last argument of the learned counsel for the appellant also pales into in significance.
9. As a sequel to the above discussion, no fault can be found with the concurrent findings of fact recorded by the two Courts below. Well reasoned judgment of the lower appellant Court, which is impugned in this Regular Second Appeal can not be faulted and is affirmed. This Regular second appeal fails and is hereby dismissed. However, the parties are left to bear their own costs.