Punjab-Haryana High Court
(O&M;) Davinder And Ors vs Durga Singh on 24 December, 2014
Author: Raj Mohan Singh
Bench: Raj Mohan Singh
RSA No.2612 of 1988 1
323
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.2612 of 1988
Date of Decision: 24.12.2014
Devinder and others ......Appellants.
Versus
Durga Singh and others .....Respondents
CORAM:HON'BLE MR. JUSTICE RAJ MOHAN SINGH
Present: Mr. Dinesh Sharma, Advocate
for the appellants.
Mr. Alok Jain, Advocate
for respondent No.1.
****
1. Whether Reporters of local papers may be allowed to see the
judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest?
RAJ MOHAN SINGH, J.
Defendants are in second appeal against the judgment and decree dated 19.10.1988 passed by Additional District Judge, Gurgaon, vide which judgment and decree dated 07.08.1987 passed by Additional Senior Sub- Judge, Gurgaon, was upheld.
2. Facts are briefly noted as under:-
Plaintiff/respondent Durga Singh filed a suit for possession by way of pre-emption in respect of 3 Kanals 14 marlas of land comprised in Killa No.33/1 and 33/26 situated in revenue estate of village Palra, Tehsil and District Gurgaon. Defendant No.5 Sanwant was owner of half share in Killa No.33/1 and 1/6th share in Killa No.33/26 and he sold it to defendants No.1 to 4 for an ostensible sale consideration of `49,500/- vide sale deed MOHMED ATIK 2015.01.02 10:19 I attest to the accuracy and authenticity of this document RSA No.2612 of 1988 2 dated 20.02.1984.
3. The plaintiff/respondent filed suit for pre-emption on the basis of being co-sharer in the land and the defendants were totally stranger to the suit land. On the basis of superior right of pre-emption, the suit came to be instituted. The suit was contested by the defendants/appellants on all possible grounds i.e. pre-emption money was not deposited in time, the defendants had effected material improvements over the land by incurring huge amount, the suit was bad for partial pre-emption, maintainability of the suit, suit is barred under Section 5 of the Punjab Pre-emption Act, the sale deed was the result of consent of the plaintiff himself and the plaintiff was estopped by his own conducts etc.
4. Replication was filed. On the pleadings of the parties, following issues were framed:-
"1. Whether the plaintiff has a superior right of Pre-
emption?
2. Whether 1/5th pre-emption amount has not been deposited within time? OPD
3. Whether the land in question situated in the Urban area if so to what effect?OPD
4. Whether the sale took place with the consent of the plaintiff as alleged in para No.3 of the written statement?OPD
5. Whether the plaintiff had waived his right?OPD
6. Whether there has been a compromise after filing of the suit if so to what effect?OPD
7. Whether the vendees/defendants have stated bonafide MOHMED ATIK 2015.01.02 10:19 I attest to the accuracy and authenticity of this document RSA No.2612 of 1988 3 improvements as alleged?OPD
8. Whether the land in question not pre-emptible?
9. Whether the suit is bad for partial pre-emption?
10. Whether the vendee/defendants are entitled to stamp and registration expenses?OPD 10A. Whether the suit is barred under Section 5 of the Punjab Pre-emption Act?OPD 10B. Whether the defendants have filed an application for partition if so to what effect?
11. Relief."
5. The plaintiff himself appeared as PW-1 and proved jamabandi Ex.P-1, sale deed Ex.P-2 and mutation Ex.P-3 on record. The sale deed dated 20.08.1984 in favour of defendants No.1 to 4 was claimed to be without his knowledge. Since he was co-sharer in the property at the time of sale, therefore, he claimed superior right of pre-emption. The co-sharership was claimed on the basis of sale by Sanwant Singh in Killa No.33/1, in his favour.
6. Trial Court under issue No.1, found the plaintiff to be having superior right of pre-emption. Under issue No.2, the trial Court found that 1/5th share of the pre-emption money was to be deposited on or before 09.04.1985, and the plaintiff had deposited the same on 08.04.1985, therefore, the issue No.2 was also found in favour of the plaintiff. Issue No.3 was not pressed. Under issue No.4, Court found no evidence to prove the sale deed to be consented one, therefore, this issue was also decided against the defendants. Under issue No.5, since there was no evidence to show that the plaintiff had waived his right, therefore, the issue was also MOHMED ATIK 2015.01.02 10:19 I attest to the accuracy and authenticity of this document RSA No.2612 of 1988 4 decided against the defendants. The plea of compromise having been effected between the parties after filing of the suit was also negated under issue No.6, resultantly the issue was considered having not been pressed. The plea of bona fide improvements by the defendants was also negated for want of evidence under issue No.7. Issue No.8 was not pressed. So was issue No.9. It was a conceded position that the defendants were entitled to stamp and registration charges in the event of suit being decreed. Therefore, under issue No.10, the defendants were held entitled to stamp and registration charges. The total charges were assessed to be `6690/-. Issue No.10-A was decided against the defendants for want of evidence. Under issue No.10-B, the trial Court held that mere filing of application for partition was not sufficient to make the suit for pre-emption not maintainable until and unless there is severance of joint status between the parties by way of instrument of partition before passing of decree by trial Court. Therefore, issue No.10-B was also decided against the defendants. Resultantly the suit was decreed against total amount of `56,190/- less 1/5th pre-emption money already deposited. The plaintiff was to deposit the said amount upto 30.09.1987, failing which the suit would have dismissed.
7. The defendants remained unsuccessful in appeal before the Additional District Judge, Gurgaon, where the defendants challenged the findings under issues No.1, 4, 6 and 7 only. During the arguments before Lower Appellate Court, the learned counsel for the defendants did not press issues No.4, 6 and 7 and he stressed upon issue No.1 only. The sole contention of the defendants before the Ist Appellate Court was that the defendants had also become co-sharer in the property by a dint of civil MOHMED ATIK 2015.01.02 10:19 I attest to the accuracy and authenticity of this document RSA No.2612 of 1988 5 Court decree Ex.D-1 dated 27.04.1987 and therefore, the plaintiff was not left with any preferential right of pre-emption against another co-sharer. The aforesaid judgment and decree dated 27.04.1987 was in respect of Khasra Nos.33/2/1 and 33/26. Khasra No.33/2/1 was not amongst the suit land and at the fag end, the learned counsel for the defendants moved an application for adducing additional evidence to bring on record copy of plaint of the suit in which judgment and decree dated 27.04.1987 was passed (Ex.D-1). The said prayer was declined by Lower Appellate Court on the ground that no such plea was taken in the written statement. Lower Appellate Court recited the plea raised in para 3 of the plaint to the effect that the plaintiff claimed his right of pre-emption on the basis of being a co- sharer. In reply thereto,the defendants pleaded in the written statement as "Para No.3 of the plaint is not admitted. The plaintiff is not admitted to be the co-sharer in the suit land, so his superior right of pre-emption is denied."
8. Since the defendants had not claimed themselves to be co-sharer in the joint Khewat in the written statement, therefore, in the absence of foundation, the plea of adducing additional evidence at the appellate stage was negated by Lower Appellate Court, resulting in dismissal of the appeal on 19.10.1988.
9. Still aggrieved by the impugned judgment and decree dated 19.10.1988 passed by learned Additional District Judge, Gurgaon, the defendants filed the present Regular Second Appeal.
10. Before this Court also the learned counsel for the appellants reiterated the grounds made before Lower Appellate Court. Keeping in view the factual and legal aspect of the case, this Court formulated MOHMED ATIK 2015.01.02 10:19 I attest to the accuracy and authenticity of this document RSA No.2612 of 1988 6 substantial questions of law on which the controversy in question can be considered in view of Section 100 C.P.C. Though the appellants have not come forward by way of placing any substantial questions of law on record, still this Court considers that following questions of law can be considered for deciding the controversy in question in a proper manner:-
A. Whether plaintiff is to prove his status of co-sharer on the date of sale, on the date of filing of the suit and at the time of passing of decree by the trial Court? B. Whether rights and liabilities of the parties crystallised at the time of filing of the suit particularly in view of the fact that at the time of filing of the suit on 20.02.1985, the defendants were not alleged co-sharers by virtue of Ex.D-I?
C. Whether the defendants can demonstrate severance of joint status of the parties by virtue of Ex.D-I on three material stages i.e. date of sale, date of filing of the suit and date of final decree by the trial Court?
D. Whether alleged acquisition of status of co-sharer after filing of the suit by dint of decree Ex.D-I can diminish a confiscatory/piratical right of the plaintiff?
11. The arguments raised by the learned counsel for the appellants have diminishing phenomenon. The requirement of law is that the plaintiff has to prove his joint status on the date of sale, on the date of filing of the suit till the date of passing of the decree by trial Court. Acquisition of status by the defendants during the pendency of the suit before the date of decree by trial Court in no way diminished the right of pre-emption on the ground MOHMED ATIK 2015.01.02 10:19 I attest to the accuracy and authenticity of this document RSA No.2612 of 1988 7 of co-sharership, because the status on the date of sale and on the date of filing of the suit in favour plaintiff remained intact and there was no disqualification to maintain the suit. This joint status of co-sharership could have been diminished by an instrument of partition, if effected, before the date of passing of the decree by trial Court. In a way, acquisition of right of co-sharership ran counter to get the property partitioned before passing of the decree by trial Court. The aforesaid questions of law, even though arise in the case, but in view of facts and circumstances of the case cannot be upheld in favour of the defendants.
12. Even if the defendants could have projected themselves to be the alleged co-sharer having acquired the same after filing of the suit, the same could not have dislodged the plaintiff. The suit being based on the co- sharership, could have been dismissed only on the ground of ceasation of joint status of the parties before the date of passing of the final decree by trial Court. That could have happened only by way of getting the suit had partitioned by way of obtaining instrument of partition before the date of decree. The cardinal principle of maintainability of suit for pre-emption is that the plaintiff has to prove joint status on three material dates as mentioned above. Though right of pre-emption is a confiscatory/piratical right, but the same can only be defeated by means of lawful proceedings.
13. The acquisition of right of co-sharership by the defendants after filing of the suit even if taken to be on its face value, would bring the land in question to be joint of the parties in addition to earlier jointness of the same, but certainly it would not bring the co-sharership to an end so as to dislodge the plaintiff in a suit for pre-emption.
14. The object of right of pre-emption is to prevent intrusion of a MOHMED ATIK 2015.01.02 10:19 I attest to the accuracy and authenticity of this document RSA No.2612 of 1988 8 stranger into the family holdings. A co-sharer under the law of pre-emption has right to substitute himself in place of a stranger in respect of a portion of property purchased by him, meaning thereby that where a co-sharer transfers his share in holding, the other co-sharer has a right to veto such transfer and thereby prevent the stranger from acquiring the holding in an area where the law of pre- emption prevails. Such right may be categorised as as archaic, feudal an outmoded, but this law was enforced for nearly two centuries either based on custom or statutory law. It is in this background the right of pre-emption under statutory law has been held to be mandatory and not mere discretionary.
15. Right of pre-emption is a very weak right, although it is a statutory right. The courts are obligated while granting the relief in favour of pre-emptor to bear it in mind about the character of the right, vis-a-vis, the constitutional and human right of the owner thereof.
16. Right of co-sharer to pre-empt a sale was repealed vide Amendment Act dated 7.5.1995 made in Punjab Pre-emption Act, 1913 as applicable to State of Haryana. The said amendment is prospective in operation. It was held that pre-emptor is required to retain his preferential right till decree of the Court of the first instance. The pre-emptor has to prove this existence of preferential right on all the three material dates as mentioned in the preceding para of the judgment. The constitutional bench of of the Hon'ble Supreme Court in Shyam Sunder and another vs. Ram Kumar and another 2001 (3) RCR (Civil) 754 has answered the aforesaid question of law.
17. The aforesaid judgment of the Constitutional Bench of the Hon'ble Supreme Court was subsequently followed in Pirthi vs. Mohan MOHMED ATIK 2015.01.02 10:19 I attest to the accuracy and authenticity of this document RSA No.2612 of 1988 9 Singh 2011 AIR (SC) 3070; Lachhman Dass vs. Jagat Ram and others 2007 (2) RCR (Civil) 300 and Ramesh Kumar vs. Surat Singh and another 2010 (3) RCR (Civil) 647.
18. No other ground has been taken before this Court.
19. Finding no substance in the appeal being bereft of merits, the same is accordingly dismissed with no order as to costs.
24.12.2014 (RAJ MOHAN SINGH)
Atik JUDGE
MOHMED ATIK
2015.01.02 10:19
I attest to the accuracy and
authenticity of this document