Punjab-Haryana High Court
Ramesh Rishi And Anr vs Satish Kumar And Ors on 29 September, 2014
Author: Rekha Mittal
Bench: Rekha Mittal
RSA No. 821 of 2013 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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RSA No. 821 of 2013
Date of decision: 29.09.2014
Ramesh Rishi and another ........ Appellants
Versus
Satish Kumar and others .......Respondents
Coram: Hon'ble Mrs. Justice Rekha Mittal
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Present: Mr. VK Jindal, Senior Advocate with
Mr. Akshay Jindal, Advocate
for the appellants
Mr. Dinesh Ghai, Advocate
for respondent No. 1
Mr. Chander Shekhar, Advocate
for respondent No. 3
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1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in
the Digest?
Rekha Mittal, J.
The present regular second appeal has been directed against the judgments and decrees passed by the Courts below whereby the suit filed by the respondent/plaintiff Satish Kumar for possession by way of pre-emption was decreed by the trial Court and the appeal preferred by the defendants/appellants namely Ramesh Rishi and Smt. Amisha Chawla was MOHAN LAL BIMBRA 2014.10.06 11:02 I attest to the accuracy and integrity of this document Chandigarh RSA No. 821 of 2013 2 dismissed by the Additional District Judge, Ambala, affirming the findings of the trial Court.
The facts relevant for disposal of the present appeal are that Satish Kumar, plaintiff filed the suit for possession by way of pre-emption of sale vide sale deed dated 20.09.2005 and supplementary sale deed dated 16.02.2006 to the extent of 1/5th share i.e. 10 kanals 8 marlas out of total land measuring 51 kanals 19 marlas, detailed in the plaint, situated in village Kalarheri, Tehsil and District Ambala.
The plea of the plaintiff is that he is cultivating the suit land to the extent of 2 kanals 3 marlas on 'batai' since June 2004 onwards under Jagjit Singh son of Bachan Singh-defendant No. 3, a co-sharer to the extent of 1/5th share in the suit land whereas his other brother Surjit Singh defendant No. 2 sold his 1/5th share to Ramesh Rishi-defendant No. 1 without prior notice to the plaintiff. Defendant No. 1 transferred the suit property to Smt. Amisha Chawla-defendant No. 4 with a malafide intention.
Surjit Singh defendant No. 2 admitted that the suit property was not partitioned when he sold his 1/5th share to defendant No. 1 vide impugned sale deed but no notice was required to be served upon the plaintiff.
Defendant No. 3 challenged maintainability of the suit in the present form being based on suppression of true and material facts. However, he admitted cultivating possession of the plaintiff over land measuring 2 kanals 3 marlas since June 2004 on 'batai'. It is pleaded that defendant No. 1 had illegally purchased land measuring 10 kanals 8 marlas out of total land from defendant No. 2 who had no right to sell specific portion out of the joint land. Defendant Nos. 1 and 4 filed the written MOHAN LAL BIMBRA 2014.10.06 11:02 I attest to the accuracy and integrity of this document Chandigarh RSA No. 821 of 2013 3 statement jointly, seriously contesting claim of the plaintiff and his entitlement to seek possession by way of pre-emption.
Replication was filed by the plaintiff reiterating his stand taken in the plaint and denied preliminary objections raised in the written statement.
The controversy between the parties led to framing of following issues by the learned trial Court:-
1. Whether plaintiff is in possession of 2 kanals 3 marlas of land on 'batai' out of suit land as detailed in the head note of the plaint under defendant No. 3 situated at village Kalerheri, Tehsil and District Ambala? OPP
2. In case issue No. 1 is decided in favour of the plaintiff, then whether plaintiff is also entitled to pre-emption of sale deed dated 20.09.2005 executed by defendant No. 2 in favour of defendant No. 1 relating to his 1/5th share measuring 10 kanals 8 marlas and also the sale deed further executed by defendant No. 1 in favour of defendant No. 4 dated 17.09.2007 being illegal null and void and not binding on the rights of the defendants in payment of sale consideration amount? OPP
3. In case, issues No. 1 and 2 are decided in favour of the plaintiff, then whether plaintiff also entitled to the relief of permanent injunction as prayed for? OPP
4. Whether suit filed by the plaintiff is not MOHAN LAL BIMBRA 2014.10.06 11:02 maintainable in the present form? OPD I attest to the accuracy and integrity of this document Chandigarh RSA No. 821 of 2013 4
5. Whether plaintiff has not approached the Court with clean hands? OPD
6. Relief.
To prove his case, the plaintiff examined himself and Surender Singh (PW2), Vishal Kochhar (PW3). Sunil Kumar (DW1), an attorney of defendant No. 1 appeared to rebut evidence of the plaintiff.
The learned trial Court returned its findings on issues No. 1 to 5 in favour of the plaintiff and as a result, the suit of the plaintiff was decreed with costs and he was directed to deposit sale consideration of Rs.7,15,000.00, minus costs awarded and 1/5th pre-emption money Rs.1,43,000.00, already deposited by him, within the period of one month from getting certified copy of the judgment failing which the suit of the plaintiff shall be deemed to be dismissed. The title of the plaintiff in the suit property to the extent of 10 kanals 8 marlas is ordered to be accrued from the date of such payment. Further, sale deeds Ex. P8 to P10 executed by defendant No. 2 in favour of defendant No. 1, by defendant No. 1 in favour of defendant No. 4 are set aside being null and void and defendants No. 1 and 4 were restrained from further alienating the property in question.
The appellants carried the matter in appeal but turned out to be unsuccessful.
Still feeling dissatisfied, the present regular second appeal has been preferred by Ramesh Rishi and Amisha Chawla, the purchasers of land measuring 10 kanals 8 marlas from Surjit Singh son of Bachan Singh, one of the co-owners.
MOHAN LAL BIMBRA2014.10.06 11:02 I attest to the accuracy and integrity of this document Chandigarh RSA No. 821 of 2013 5
Counsel for the parties made submissions on the following substantial question of law:
"Whether the respondent/plaintiff has a right to pre- empt the sale by Surjit Singh who is not the landlord qua the respondent/plaintiff, on the basis of his tenancy in regard to land measuring 2 kanals 3 marlas under
another co-owner Jagjit Singh."
Shri V K Jindal, Senior Advocate for the appellants has urged that keeping in view true import and intent of Section 15 of the Punjab Pre- emption Act, 1913 ( in short, 'the 1913 Act') as applicable to State of Haryana, the respondent/plaintiff has no right to pre-empt the sale by one of the co-owners namely Surjit Singh as Satish Kumar was not holding under tenancy of the vendor or the vendors of the land sold vide sale deed dated 20.09.2005, supplement sale deed dated 16.02.2006.
Counsel for the contesting respondent has supported the judgments passed by the Courts below with the submissions that as the respondent/plaintiff is a tenant on part of the joint land, co-owned by Surjit Singh, Jagjit Singh and their other brothers, the plaintiff/respondent has the right to pre-empt the sale of any part of the joint land held by Surjit Singh and others. It is further argued that the appellants cannot take any advantage to their plea from tatima sale deed whereby sale was sought to be changed in the form of specific khasra numbers as sale by a co-sharer even by specific numbers shall be taken as a sale of share out of the joint land. In this regard, he has relied upon judgment of the Full Bench of this Court in Bhartu v. Ram Sarup, 1981 PLJ 204 Before proceeding to deal with the rival submissions made by counsel for the parties, it is appropriate to mention that there is no dispute MOHAN LAL BIMBRA 2014.10.06 11:02 I attest to the accuracy and integrity of this document Chandigarh RSA No. 821 of 2013 6 about the settled position of law laid down in Bhartu's case (supra) that sale of a specific portion of land described by particular khasra numbers by a co- owner out of the joint khewat would be a sale of share out of the joint land. Section 15 of the 1913 Act was substituted by Haryana Act of 1995. A relevant extract from Section 15 reads as follows:-
"15. Right of pre-emption of vest in tenant - The right of pre-emption in respect of sale of agricultural land and village immovable property shall vest in the tenant who holds under tenancy of the vendor or vendors the land or property sold or a part thereof."
A plain reading of Section 15 makes it evident that right of pre- emption in respect of sale of agricultural land and village immovable property shall vest in the tenant who holds under tenancy of the vendor or vendors the land or property sold or a part thereof. The expression 'the land or property sold or a part thereof' came up for consideration before Hon'ble the Supreme Court of India in Ram Chand v. Randhir Singh 1994 (3) PLR 605 and it was held that an agricultural tenant holding under tenancy of the vendor a part of the sold land is entitled to pre-empt the sale. However, it has always remained unquestioned that the tenant can pre-empt the sale with regard to the portion of the land actually in his tenancy. To the un-tenanted portion which was part of the sale, a bar has always been read.
In the case at hand, the question before me is not 'whether a tenant holding under tenancy of the vendor a part of the sold land is entitled to pre-empt the entire sale or a part of the sold land.? The question is 'whether the tenant who is holding under tenancy of a co-owner other MOHAN LAL BIMBRA 2014.10.06 11:02 I attest to the accuracy and integrity of this document Chandigarh RSA No. 821 of 2013 7 than the vendor can pre-empt the sale in question because the vendor happens to be a co-owner with the landlord of the tenant/plaintiff.?' To answer this question, the words 'holding under tenancy of the vendor or vendors' in Section 15 assume significance.
The respondent/plaintiff in paras 3 and 4 of the plaint has averred as follows:-
"3. That one Shri Gopal Singh who was the real brother of defendant Nos. 2 and 3 was unmarried and issueless and he was also having 1/5th share in the total land measuring 51 kanals -19 marlas the share which comes to 10 kanals - 08 marlas and he expired leaving behind his four brothers namely Surjit Singh, Ranjit Singh, Jagjit Singh and Bhupinder Singh, they became owner in possession in respect of the share of the deceased Gopal Singh qua their respective share each.
4. That though the entire land as detailed above, is not partitioned and joint one in cultivation of the all the co-sharer and the plaintiff has been cultivating 2 kanals 3 marlas of land qua the 1/5th share of the land of the deceased Gopal Singh which he took on 'batai' from the defendant No.3 and he has been in possession as a cultivator in respect of khasra No. 5//21 as well as khasra No. 8//1 and he has also been paying 'batai' to the defendant No. 3 regularly.
Admittedly, sale out of joint land has been made by Surjit Singh and not Jagjit Singh under whom the plaintiff held land as a tenant.
The tenancy/lease is a bilateral contract between the lesser and lessee.
Merely because the respondent/plaintiff became tenant of land measuring 2 kanals 3 marlas comprising khasra No. 5//21, 8//1 under Shri Jagjit Singh, he neither can claim himself to be a tenant in possession of every inch of MOHAN LAL BIMBRA 2014.10.06 11:02 I attest to the accuracy and integrity of this document Chandigarh RSA No. 821 of 2013 8 joint land, nor can he equate his position with that of a co-sharer. The right of pre-emption is a pyritical right and to successfully maintain right of pre-
emption, the claimant has to bring his case strictly within the purview and ambit of beneficial provisions. In the instant case, as the respondent/ plaintiff was not holding under tenancy of vendor-Surjit Singh and Jagjit Singh did not join Surjit Singh in selling any part of the joint land, the Courts below have committed a gross error in holding the respondent/ plaintiff to be entitled to right of pre-emption even in respect of sale effected by a co-owner of the joint land who admittedly is not the landlord qua Satish Kumar. In this view of the matter, I am of the considered opinion that the respondent/plaintiff has no right to assert his pre-emptory right against sale of land effected by Surjit Singh. As a result, the findings recorded by the Courts below in favour of the respondent/plaintiff cannot be allowed to sustain and accordingly set aside.
For the reasons aforesaid, the appeal is allowed and the judgments and decrees passed by the Courts below are set aside and the suit filed by the plaintiff/respondent is ordered to be dismissed with costs. Any amount deposited by the plaintiff/respondent in compliance with directions issued by the trial Court shall be refunded, in accordance with law.
(Rekha Mittal) Judge 29.09.2014 mohan MOHAN LAL BIMBRA 2014.10.06 11:02 I attest to the accuracy and integrity of this document Chandigarh