Punjab-Haryana High Court
Ajit Singh vs Waryam Singh on 27 February, 2025
Neutral Citation No:=2025:PHHC:027624
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA-218-1992 (O&M)
Date of pronouncement: 27.02.2025
Ajit Singh
...Appellant(s)
Vs.
Waryam Singh
...Respondent(s)
CORAM: HON'BLE MS. JUSTICE NIDHI GUPTA
Present:- Mr. Rakesh Gupta,, Advocate
for the appellant.
Mr. Malkeet Singh, Advocate with
Mr. Mohit Potalia, Advocate
for respondent No.1.
***
NIDHI GUPTA, J.
The defendant No.1 is in Second Appeal ppeal before this Court against the judgment and decree dated 09.01.1992 passed by the learned Additional District Judge, Ambala whereby the judgment and decree dated 31.01.1991 passed by the learned Sub Sub-Judge, Judge, III Class, Ambala City dismissing the suit of the plaintiff, has been reversed and appeal of the respondent/plaintiff has been decreed.
2. The parties shall hereinafter be referred to as per their status before efore the learned trial Court i.e. the appellant shall be referred to as the 'defendant no.1'; and the respondent shall be referred to as 'the plaintiff'. Vide order dated 30.01.1992 execution of the judgment and decree dated 09.01.1992 was stayed by this Court till further orders. It has further been stated by learned counsel for the defendant No.1 that the defendant no.1 is presently in possession of the suit property.
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3. Brief facts of the case are that the plaintiff being co--
sharer, filed the suit for recovery of possession by w way of pre-emption emption of agricultural suit land as described in the plaint, comprising in khewat nos.
250, 291, 251, 293, and 307.
307 The plaintiff alleged that he was co sharer in the suit land at the time of execution of the registered sale deed no.7807 dated 17.2.19 1988 by the defendant no.2 in the favour of the defendant no.1.
He was always ready to purchase the suit land from defendant no.2 but the defendant no.2 had not acceded to his request and sold the suit land to the defendant no.1 in view to defeat the pre pre-emptory emptory right of the plaintiff through above said registered sale deed dated ted 17.2.1988 No.7807 7807 and the plaintiff has accrued his right to pre-empt empt the sale deed.
4. Upon notice, the defendant No.1/appellant herein appeared and filed written statement,, resisting the suit by denying that plaintiff was co-sharer in the suit land; and stating that the suit is bad for partial preemption.
5. On the basis of pleadings of the parties, following issues were framed:-
framed:
"1. Whether the plaintiff has got a superior a and nd preferential right to pre emption tion sale in question?OPP
2. Whether the suit is not maintainable in present form?OPD
3. Whether the suit is bad for partial pre pre-emption?OPD
4. Whether the plaintiff has not deposi deposited one fifth pre--
emption money in time?If so, to what effect?OPD
5. Whether the suit is barred by time?OPD 2 of 10 ::: Downloaded on - 01-03-2025 15:24:23 ::: Neutral Citation No:=2025:PHHC:027624 Page 3 of 10
6. Whether the plaintiff is estopped to file the present suit by his own act and conduct?OPD
7. Whether the plaintiff has reclaimed the suit land after its purchase, if so at what expense and to what effect?OPD
8. Whether the defendant has incurred the expenses on purchases on non-judicial judicial stamp papers on registration charges and on scribe etc. Iff so to what effect?OPD
9. Relief."
6. On the basis of arguments and oral and documentary evidence brought on record by the parties, the learned trial Court decided the Issue no.1 against the plaintiff and in favour of the defendant holding that as per Ex.P-1/ Ex.P Jamabandi for the year 1983 1983-84, the plaintiff is shown as co-sharer in the suit property at the time of execution of sale deed deed; and that as per the revenue record the plaintiff, not being the original co co-
sharer in the suit land, has also stepped into the same capacity as the defendant no.1.
no.1 Issue no.2 was decided against the defendant being not pressed. Issue no.3 was decided against the plaintiff and in favour of the defendant holding that the suit is bad for partial pre pre-emption as plaintiff had admittedly excluded Khasra no. 38/24/19(0 38/24/19(0-2), 1981(1-1) from the Suit land without any explanation.
explanation Issue nos. 4, 5, and 6 but decided in favour of the plaintiff and against the defendant; and Issue nos.7 and 8 went in favour of the defendants and against the plaintiff. Accordingly, vide judgment and decree dated 31.01.1991 31.01.1991the learned trial court dismissed the suit of the plaintiff as plaintiff could not establish himself as 3 of 10 ::: Downloaded on - 01-03-2025 15:24:23 ::: Neutral Citation No:=2025:PHHC:027624 Page 4 of 10 co-sharer sharer in the suit property; and as the suit was also bad for partial pre pre-
emption.
7. The plaintiff filed appeal before the learned Additional District Judge, Ambala which wh was allowed vide judgment and decree dated 9.1.1992, reversing the findings of the learned trial court in respect of Issues no.1 and 3. The ld. First Appellate Court held that plaintiff had asserted his co-sharership co ship in the suit land in the plaint; as also in his evidence as PW1; and that no question was directed at the plaintiff in this regard during cross-examination cross examination by the defendant no.1/DW1; and therefore, the plaintiff plainti had been able to prove that he had superior right to pre-empt empt the impugned sale in respect of land comprising in khewat no.250. As regards Issue no.3, the learned 1st Appellate Court held that the suit was not bad for partial pre-emption.
pre emption. Accordingly, the judgment and decree ee of the learned trial Court was set aside and suit of the plaintiff was decreed to the extent that he was entitled to pre pre-empt the impugned sale on payment of total amount of Rs.37,275 7,275/- by 31.1.1992. In case of default, the suit shall stand dismissed. Hence, present second appeal by the defendant no.1.
8. Learned counsel for the defendant No.1 very persuasively submits that as per the established position in law, partial pre-emption emption could not have been permitted. It is submitted that the learned Appellate ellate Court erred in recording a finding in favour of the pre pre-
emptor that he was a co-sharer co sharer in the suit land. The said finding is not 4 of 10 ::: Downloaded on - 01-03-2025 15:24:23 ::: Neutral Citation No:=2025:PHHC:027624 Page 5 of 10 proved from the evidence on record. There is no material evidence which can support this finding. The suit was bad for p partial pre-emption as the pre-emptor emptor had left the suit land comprising in Khasra no. 38/24/19(0-2), 1981(1-1). Besides that the pre-emptor pre emptor had not claimed the rights of Shamlat Deh which were sold by the vendor vendor. Since the rights were not pre-empted d which were attached to the land so the suit was bad for partial pre-emption.
emption. A bare perusal of the plaint and the sale deed would show that the rights which were attached with the suit land were not pre pre-
empted. The ld.
l Appellate Court has erred in deciding issue Nos.1 and 3 against the appellant and in favour of the plaintiff. Admittedly, plaintiff has not purchased the entire holdings in the suit land land; and as held by our Court in 1970 PLJ PLJ 198 and 1970 PLR 341, the plaintiff does not become co-
sharer in the joint estate unless he purchases the entire share of a co co-
sharer. Therefore, herefore, these th issues no.1 and 3 deserve to be returned in favour of the appellant and against plaintiff.
9. In support of his contentions, the learned counsel judgment of this Court in "Ganga Singh Vs. Narinjan Singh"
relies upon judgments Law Finder Doc ID # 62298, 62298 and in "Shiv Ram & Others Vs. Shree Des Raj"
Law Finder Doc ID # 75630.
75630
10. Per contra, learned counsel for the respondent No.1/plaintiff submits that admittedly the plaintiff was owner of part of the suit land;
land and was therefore, co-sharer sharer in the suit land land. As such, the plaintiff was entitled for pre-emptory pre emptory decree in his favour as he had first 5 of 10 ::: Downloaded on - 01-03-2025 15:24:23 ::: Neutral Citation No:=2025:PHHC:027624 Page 6 of 10 right over the suit property in view of his admitted ownership. It is accordingly submitted that there there is no error in the judgment passed by the learned First Appellate Court.
Court Learned counsel relies upon three three-Judge Bench judgment of this Court in "Lachhman Singh Vs. Pritam Chand & Another" Law Finder doc ID # 58679, 58679 wherein it has been held as under:-
"Punjab Pre-emption emption Act, 1913, Section 15 (1)(b) Fourthly - "Co-sharers" - Meaning of - Purchaser of specific killa numbers in specified rectangles out of joint land such - In terms of their sale deed, purchaser do not have a right beyond the share of land sold to them - They do not become co-sharers sharers in the remaining joint land.
land."
11. Learned counsel accordingly prays for dismissal of the present appeal.
12. No other argument is made on behalf of the parties.
13. I have heard learned arned counsel for the parties and perused the case file in great detail.
14. The short question to be determined in the present case is whether the suit of the plaintiff/pre plaintiff/pre-emptor was bad for partial pre-emption.
emption. The undisputed facts on record are that that, although in Jamabandi for the year 1983-84/Ex.P-1, 1983 , the plaintiff is shown as co-sharer in the suit land, land however he was also a vendee in the suit land prior to execution of the sale deed dated 17.2.1988. As such he was similarly placed as defendant no.1. Moreover, admittedly, the plaintiff had not purchased the whole of the suit land. As such, the plaintiff has not filed 6 of 10 ::: Downloaded on - 01-03-2025 15:24:23 ::: Neutral Citation No:=2025:PHHC:027624 Page 7 of 10 the suit with regard to entire land involved in impugned sale deed dated 17.2.1988 as admittedly, the plaintiff has left the suit land comprising in Khasra no. 38/24/19(0-2), 38/24/19(0 1981(1-1). However, the ld. Appellate Court below has held that the plaintiff is certainly entitled to pre pre-empt the sale with regard to his portion of land in which he was co co-sharer. The contention of defendant/appellant to the effect that the Plaintiff could not be said to have superior right to pre-empt pre empt the impugned sale as suit itself was bad for partial pre-emption, pre emption, was rejected by the learned court below by holding that the Pre-emptor Pre emptor could cla claim a superior right of pre-
emption in respect of that rectangle, a share whereo whereof had been purchased by pre-emptor or at an earlier point of time.
15. However, the said reasoning is flawed as the legal position in this regard is now very clear. By virtue of the amendment in the Preemption Act, the co-sharer co has lost his right of preemption preemption.
Besides, it has been held in numerous judgments that right of pre pre-
emption is a weak right. In this regard, reference may firstly be made to recent judgment of the Hon'ble Supreme Court in ""Abdul Matin Mallick v.
Subrata Bhattacharjee (Banerjee) & Others Others" (SC) : Law Finder Doc Id # 1984040, wherein, it has been held that: -
"6.
6. At this outset, it is required to be noted that pre pre-emptors submitted the application before the learned Trial Court under Section 5 of the Act, 1955, in respect of the share sold by their sisters. Therefore, efore, the contesting respondents herein - the original pre-emptors emptors sought to exercise their right as pre pre-
emptors under the provisions of the Act, 1955. The right of 7 of 10 ::: Downloaded on - 01-03-2025 15:24:23 ::: Neutral Citation No:=2025:PHHC:027624 Page 8 of 10 the pre-emption emption has been elaborately dealt with and considered by a Four Judge Bench of th this Court in the case of Bishan Singh v. Khazan Singh, AIR 1958 SC 838 838, wherein at paragraph 11, it is observed and held as under: -
"11. ... (1) The right of pre pre-emption emption is not a right to the thing sold but a right to the offer of a thing about to be sold. This right is called the primary or inherent right. (2) The pre-emptor emptor has a secondary right or a remedial right to follow the thing sold. (3) It is a right of substitution but not of re re-purchase i.e. the pre-emptor emptor takes the entire bargain and steps into the shoes of the original vendee. (4) It is a right to acquire the whole of the property sold and not a share of the property sold. (5) Preference nce being the essence of the right, the plaintiff must have a superior right to that of the vendee or the person substituted in his place. (6) The right being a very weak right, it can be defeated by all legitimate methods, such as the vendee allowing the claimant of a superior or equal right being substituted in his place."
6.1 Thus, as observed and held by this Court in the aforesaid judgment, the right of pre-emption pre emption is "a very weak right". That being the character of the right, any provision to enforce such a right must, thus, be strictly construed. [[Barasat Eye Hospital and Ors. (supra)]"
(Emphasis added)
16. From the above ruling, it is clear that not only is pre pre-
emption a weak right, but partial pre-emption pre emption is impermissible. In the present case, admittedly, the prayer of the plaintiff was for the entire land, however, he could not pre-empt pre empt the entire suit land because he is not a co-sharer sharer in the entire land.
17. In this regard, reference may also be made to the judgment relied upon by learned counsel counsel for the appellant in case of Ganga Singh (supra), wherein it is held that: -
8 of 10 ::: Downloaded on - 01-03-2025 15:24:23 ::: Neutral Citation No:=2025:PHHC:027624 Page 9 of 10 ".....The The lower appellate Court as well as the learned Single Judge have taken the view that such a suit would be barred as a pre-emptor emptor cannot sue for partial pre pre-emption the rule being that in pre-emption emption there is substitution of the pre pre-
emptor for the vendee and there is no retransfer of the property. The matter is not res integra. It is concluded by the Full Bench decision of the Lahore High Court in Ghulam Qadir and others ers v. Ditta and others, AIR 1945 Lahore 184 and a Division Bench decision of that Court in Tirath Ram v. Dina Nath deceased, through his representatives and others, ILR (1933) 14 Lahore 810. Mr. Sarin, however, drew our attention to cases decided by Oudh High Court, the latest being Paltan Singh v. Pt. Prag Narain and others, AIR 1945 Oudh 167 167, wherein it has been held that there is nothing wrong in a pre pre-
emptor suing for pre-emption emption of a par part of the property on payment of entire sale consideration. With utmost respect to the learned Judges who decided these cases, we are of the view that they do not lay down the correct rule of law. In the first place, it has not been brought to our notice wh what is the law of pre-emption emption law prevailing in Oudh. In the second place, so far as the pre-emption emption law in the Punjab is concerned, one rule is firmly settled that the right of pre pre-
emption is a right of substitution. In other words, the name of the vendee is rubbed from the sale deed and that of the pre pre-
emptor is introduced therein. There is another way of looking at the matter. Supposing, the vendee purchases property for a particular purpose and by permitting partial pre pre-emption on payment of the whole consideration nsideration he is left with part of the property which does not serve his purpose, he is unnecessarily bound down to that part of the property and it would be no argument to say that there is no loss to the vendee. From the 9 of 10 ::: Downloaded on - 01-03-2025 15:24:23 ::: Neutral Citation No:=2025:PHHC:027624 Page 10 of 10 various considerations which hav have to be taken notice of while dealing with a claim of pre-emption emption and as already stated, the right of pre-emption emption being a right of substitution, the very basis of that right is destroyed by permitting a decree for partial pre-emption emption though on payment of tthe entire sale consideration. The view we have taken is amply supported by authorities. For the reasons recorded above, these appeals fail and are dismissed. As there is no representation for the respondent, there will be no order as to costs.
costs."
18. The respondent-plaintiff plaintiff can derive no benefit from the relied upon judgment in case of Lachhman Singh (supra) as the same is distinguishable on facts and law.
19. In view of the above noted, factual and legal position position, the present appeal is allowed. The impugned mpugned judgment and decree dated 9.1.1992 of the ld. Lower Appellate Court is hereby set aside.
20. Pending application(s) if any also stand(s) disposed of.
27.02.2025 (Nidhi Gupta)
Sunena Judge
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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