Punjab-Haryana High Court
Birbal Ram vs Ram Partap on 16 July, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:088415
RSA-477-1994 (O&M) 1
101 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA-477-1994 (O&M)
Date of decision: 16.07.2024
Birbal Ram and another
....Appellants
Versus
Ram Partap and another
..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present:- Mr.Sandeep Kumar Tada, Advocate for the appellants
Mr. B.S.Mittal, Advocate for the respondents
ANIL KSHETARPAL, J (Oral)
1. In this Regular Second Appeal, the defendants assail the correctness of the First Appellate Court's judgment, which in turn, has reversed the trial court's judgment.
2. In order to comprehend the issues involved in the present case, some relevant facts, in brief, are required to be noticed.
3. In this judgment, the parties shall be referred to by their status in the original suit.
4. On 21.05.1987, 18 kanals 6 marlas land being 366/728th share in the land measuring 36 kanals 8 marlas was sold by Sh.Pal Chand, Sher Chand, Lekh Raj sons of Sh.Tahla Ram in favour of defendant no.1 and 2 for a total sale consideration of Rs.41,580/-. The plaintiffs (respondents herein) filed a suit for pre-emption on the ground that they are co-sharers in the land and no notice with reference to the intending sale of the undivided portion of land alongwith its price was 1 of 3 ::: Downloaded on - 23-07-2024 00:20:27 ::: Neutral Citation No:=2024:PHHC:088415 RSA-477-1994 (O&M) 2 given to them before executing the sale deed. The suit was filed on 16.05.1988. The defendants, while contesting the suit, claimed that the plaintiffs are not co-sharers. After settling the issues, the trial court dismissed the suit, which in appeal, has been reversed by the First Appellate Court. This appeal was admitted for regular hearing in the year 1994 and has now come up for hearing.
5. After having heard the learned counsel representing the parties, the question which requires adjudication is, "what is the date of severance of status between the co-sharers in partition proceedings under the Punjab Land Revenue Act, 1887." In this case, the defendants produced order Ex.DX sanctioning Naksha Be on 09.04.1991. In this order, the respective perusal of land falling to the share of all the co- owners was identified and the objections filed by the plaintiffs were dismissed on the basis of order Ex.DX. The trial court held that severance of status between the co-sharers took place on 09.04.1991 whereas the court of first instance decided the suit on 19.05.1992. Hence, the suit was dismissed. The superior right of pre-emption is required to be maintained on the date of sale, the date for institution of the suit and the date of decision of the court of first instance as explained by the Five Judges Bench of Supreme Court in Sham Sunder and another vs. Ram Kumar and another 2001 AIR (SC) 2472. The First Appellate Court held that instrument of partition Ex.AD1' which was produced in additional evidence was prepared in the year 1993. Hence, the severance of status will take place only when instrument of partition was prepared. Recently, the Hon'ble Supreme Court in Jhabbar Singh 2 of 3 ::: Downloaded on - 23-07-2024 00:20:28 ::: Neutral Citation No:=2024:PHHC:088415 RSA-477-1994 (O&M) 3 (deceased) through Legal Heirs and others vs. Jagtar Singh 2023 AIR (SC) 2074 has held that the severance of status between the co- sharers takes place when Naksha be is finalized and instrument of partition drawn by the revenue officer is only an administrative act. The Supreme Court decided this while examining the superior right of pre- emption between co-sharers in the context of Punjab Pre-emption Act, 1913.
6. Keeping in view the ratio decidendi of the aforesaid judgment in Jhabbar Singh's case (supra), the judgment of the First Appellate Court is not sustainable. Hence, the same is hereby set aside and that of the trial court is restored.
7. Regular Second Appeal stands allowed.
8. At this stage, learned counsel representing the plaintiffs submits that some amount has been deposited by the plaintiffs, which may be permitted to be withdrawn.
9. Learned counsel representing the defendants has no objection thereto.
10. Ordered accordingly.
11. All the pending miscellaneous applications, if any, are also disposed of.
16.07.2024 (ANIL KSHETARPAL)
rekha JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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