Punjab-Haryana High Court
(O&M) Vikram Singh vs Waryam Singh & Others on 27 February, 2025
Neutral Citation No:=2025:PHHC:027616
Page 1 of 11
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA-217-1992 (O&M)
Date of pronouncement: 27.02.2025
Vikram Singh
...Appellant(s)
Vs.
Waryam Singh & Another
...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 before this Court against the concurrent judgments and decrees of the learned Courts below; whereby the suit of the respondent no.1/ plaintiff for recovery of possession by way of pre-emption pre of suit land, was partly decreed by the learned Senior Sub-Judge, Sub Ambala vide judgment and decree dated 14.12.1990; and the appeal filed by the appellant/defendant No.1 thereagainst has been dismissed by learned Additional District Judge, Ambala vide impugned judgment and decree dated 09.01.1992.
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 contesting respondent no.1 shall be referred to as 'the plaintiff'.
plaintiff Respondent no.2 here herein is the defendant no.2 who was directed to not be served by this Court vide order dated 1 of 11 ::: Downloaded on - 01-03-2025 15:22:50 ::: Neutral Citation No:=2025:PHHC:027616 Page 2 of 11 25.9.1997. 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.
3. Briefly stated the facts of the case are that the defendant No.2 sold her half share in the suit land measuring 81 kanals (comprising comprising in 4 khewat no. 250 - 59 kanals kanals; khewat no. 251 - 16 kanals; khewat no. 306 - 1K 4M; and khewat no. 307 - 4K 16M), to defendant No.1 for Rs.40,000/ Rs.40,000/- through registered Sale Deed dated 18.02.1988/Ex.P1 Ex.P1. The said sale deed shows that defendant No.2 sold the land falling in khewat Nos.250, No .250, 251, 306 and 30 307 without any notice to the plaintiff. The plaintiff claimed that he has superior right to pre pre-empt the sale being a co-sharer co in 2 khewat nos. 250 and 307 to the extent of 20 kanals 7 Marlas.
Marlas Hence the present suit was filed by the plaintiff on 23.4.1988by way of pre-emption pre emption of agricultural land land.
4. Upon notice, the defendant No.1/appellant herein appeared and resisted the suit by filing written statement dated 12.11.1988in in which the co-sharership co sharership of the plaintiff was denied and it was further pleaded that suit is barred in partial preemption. It was also pleaded that the suit land was bought for valuable consideration; that the suit is time-barred barred etc. Defendant No.2 was proceeded against ex parte before the learned trial court vide order dated 05.09.1988 05.09.1988. The plaintiff 2 of 11 ::: Downloaded on - 01-03-2025 15:22:50 ::: Neutral Citation No:=2025:PHHC:027616 Page 3 of 11 filed replication dated 21.11.1988 reasserting the averments made in the plaint.
5. On the basis of pleadings gs of the parties, following issues were framed: -
"1. Whether the plaintiff has superior right of pre pre-emption?
emption?
OPP
2. Whether the sale price was fixed in good faith and actually paid? OPP
3. If issue no.2 is not proved, what was the market value of the suit land at the time of sale? OPP
4. Whether the suit is not maintainable as alleged? OPD
5. Whether the suit is bad for partial pre pre-emption? OPD
6. Whether the plaintiff has not deposited the 1/5th pre-- emption money in time? OPD
7. Whether the suit is time barred? OPD
8. Whether the vendee defendant is entitled to purchase of stamp registration charges and if so to what amount? OPD
9. Whether the plaintiff has waived his right to pre pre-emption n as alleged? OPD
10. Whether the plaintiff is estopped by his own act and conduct from filing the present suit? OPD
11. Relief."
6. The plaintiff placed on record Ex. P P-1 (copy of sale deed) and Ex. P-2 P (copy of Jamabandi);; whereas the appellant as defendant no.1 placed on record Jamabandi for the year 1983 1983-84/Ex. D-4 to demonstrate that the plaintiff was not a co-sharer in Khewat Nos. 251 and 306;; and as per the sale deed Ex.P-1,, the appellant had purchased the land falling in 4 Khewats i.e. Khewat Nos.. 250, 251, 306 and 307 307; and the 3 of 11 ::: Downloaded on - 01-03-2025 15:22:50 ::: Neutral Citation No:=2025:PHHC:027616 Page 4 of 11 plaintiff had not included the land falling in Khewat No. 306 measuring 1 Kanals 3 Marlas.
Marl
7. The Ld. Trial Court decided the issue No. 1 partly in favour of the plaintiff and partly in favour of defendant no.1 by observing that the plaintiff is co-sharer co only in part of the suit land measuring 64 Kanals and 4 Marlas comprising in Khewat No Nos. 250 and 307. While deciding Issue ssue No. 5, the Ld. Trial Court found found that as the plaintiff has sought preemption as co-sharer co sharer of the land of Khewat in which he is recorded as co-sharer, co therefore, the suit is not bad for partial preemption. Consequently, vide judgment and decree dated 14.12.1990, the learned trial Court partly decreed the suit by way of preemption to the extent of 1/8th share of the land measuring 8 Kanals comprising in Khewat Nos.. 250 and 307 on payment of 45,550/ 45,550/-less Rs.8,000/- paid net Rs.37,555/- to be deposited by the plaintiff before 14.01.1991 failing which the suit shall be deemed to have been dismissed with costs.
8. The appellant/defendant No.1 went in appeal before the learned Additional District Judge, Ambala which was dismissed vide judgment and decree dated 09.01.1992without 09.01.1992without touching the issue No. 11; and only discussed issue No. 5 holding that it is not case of partial preemption and that the pre-emptor of a property can claim superior right of pre-emption emption only in respect of those rectangle Numbers in which he is a co-sharer, sharer, by virtue of purchase of a part thereof. It was accordingly held that the suit was therefore, therefor , not bad for partial pre pre-emption; and 4 of 11 ::: Downloaded on - 01-03-2025 15:22:50 ::: Neutral Citation No:=2025:PHHC:027616 Page 5 of 11 appeal of defendant no.1 was dismissed. Hence, the present second appeal.
9. Learned counsel for the defendant No.1 very persuasively submits that as per the established position in law, partial pre-emption emption of the suit land could not have been permitted. It is submitted that the learned Courts below erred in recording a finding in favour of the pre-emptor pre that he was a co-sharer sharer in the suit land. The said finding is not proved from the evidence on record. There is no material evidence which can support this finding. The suit was bad for partial pre- emption as the pre-emptor pre emptor had left the suit land comprising in khewat No.251 51 and 306. Besides that the pre-emptor emptor had not claimed the rights of ShamlatDeh 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. It was further argued that 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-empted.
pre The learned Courts below have erred in deciding issue No.1 partly against the appellant and in favour of plaintiff/respondent respondent No.1. Plaintiff has miserably failed to prove this issue in his favour. He has not purchased the entire holdings of Smt. Lita Wanti in the suit land and as held by our ou Court in 1970 PL PLJ 198 and 1970 PLR 341, the plaintiff does not become the co-sharer sharer in the joint estate unless he purchases the entire share of a co-sharer co sharer. Therefore, this issue 5 of 11 ::: Downloaded on - 01-03-2025 15:22:50 ::: Neutral Citation No:=2025:PHHC:027616 Page 6 of 11 deserves to be returned in favour of the appellant and against the plaintiff.
10. In support of his contentions, learned counsel relie relies judgment of this Court in "Ganga Singh Vs. Narinjan Singh" Law upon judgments Finder Doc ID # 62298, 62298 and in "Shiv Ram & Others Vs. Shree Des Raj" Law Finder Doc ID # 75630.
75630
11. Per contra, learned counsel for the respondent No.1/plaintiff submits that admittedly the plaintiff was owner of the suit land as comprised in Khasra No.250 and 307 307 by way of Sale Deed. As such, the plaintiff was co-sharer co 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 right over the suit property rty in view of his admitted ownership. It is accordingly submitted that there is no error in the judgments and decrees passed by the learned Courts below. Learned counsel accordingly prays for dismissal of the present appeal. Learned counsel relies upon th 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:
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."
12. Accordingly, ld. Counsel ounsel for the plaintiff accordingly, prays for dismissal of the present Appeal.
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13. No other argument is made on behalf of the parties.
14. I have heard learned arned counsel for the parties and perused the case file in great detail.
15. The short question to be determined in the present case is whether the suit of the plaintiff/pre plaintiff re-emptor was bad for partial pre-emption.
emption. The undisputed facts on record are that, as is clear from Jamabandi for the year 1983-84/Ex.D4, 1983 the plaintiff was not co co-sharer in the land falling in khewat Nos.251 and 306. Accordingly, the plaintiff has not filed the suit with regard to entire land involved in impugned sale deed Ex.P-1 1 which comprises in the above said khewat Nos.251 and 306, as also khewat Nos.250 and 307. The ld. Courts below have held that the plaintiff is certainly entitled to pre-empt pre empt the sale with regard to portion of land falling in khewat No.250 and 307 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 , was rejected by the learned courts below by holding that the Pre-emptor emptor could claim a superior right of pre pre-
emption in respect of that rectangle, rectangle, a share whereof had been purchased by pre-emtpor emtpor at an earlier point of time.
time
16. However, the said reasoning is flawed as the legal position in this regard is now very clear.
clear By virtue of the amendment in the Preemption Act, the co-sharer co has lost his right of preemption. Besides, it has been held in numerous judgments that right of pre pre-
7 of 11 ::: Downloaded on - 01-03-2025 15:22:50 ::: Neutral Citation No:=2025:PHHC:027616 Page 8 of 11 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 Bhattacharj (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, 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 the pre-emption emption has been elaborately dealt with and considered by a Four Judge Bench of 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 ssold. (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 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 wing 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 8 of 11 ::: Downloaded on - 01-03-2025 15:22:50 ::: Neutral Citation No:=2025:PHHC:027616 Page 9 of 11 such a right must, thus, be strictly construed. [[Barasat Eye Hospital and Ors. (supra)]"
(Emphasis added)
17. 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.
18. In this regard, reference may also be made to the Division Bench judgment of this Court relied upon by learned counsel for the appellant in case of Ganga Singh (supra), wherein it is held that: -
".....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- 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 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 part of the property on payment of entire sale consideration. With utmost respect to the learned Judges who decided ecided these cases, we are of the 9 of 11 ::: Downloaded on - 01-03-2025 15:22:50 ::: Neutral Citation No:=2025:PHHC:027616 Page 10 of 11 view that they do not lay down the correct rule of law. In the first place, it has not been brought to our notice 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 loo 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 he is left with part of the property which does not serve his purpose, he is unnecessarily bound nd 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 various considerations which 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 the entire sale consideration. The view we have taken is amply supported by authorities. For the reasons re 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."
19. 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.
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20. In view of the above-noted, noted, factual and legal position position, the present appeal is allowed. The impugned judgments and decrees of the ld. Courts below are hereby set aside.
21. 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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