Punjab-Haryana High Court
(O&M) Rama And Ors vs Narain Dutt And Ors on 26 February, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
103 2024:PHHC:025923
In the High Court of Punjab and Haryana, at Chandigarh
Regular Second Appeal No. 1223 of 1989 (O&M)
Date of Decision: 26.02.2024
Rama and Others
... Appellant(s)
Versus
Narain Datt and Others
... Respondent(s)
CORAM: Hon'ble Mr. Justice Anil Kshetarpal.
Present: Mr. Sushil Bhardwaj, Advocate
for the appellant(s).
Mr. Rajinder Goel, Advocate
for the respondent No.1 to 4.
Anil Kshetarpal, J.
1. The Regular Second Appeal in the States of Punjab and Haryana and Union Territory, Chandigarh is governed by Section 41 of the Punjab Courts Act, 1918 and not by Section 100 of the Code of Civil Procedure, 1908, as held by a five Judge Bench of the Supreme Court in Pankajakshi (Dead) through LRs v. Chandrika and Others (2016) 6 SCC 157.
2. On 14.02.2024, the following order was passed:-
"1. In this regular second appeal, the defendants assail the correctness of the judgment and decree passed by the First Appellate Court while decreeing the plaintiffs' suit for possession by way of pre-emption of sale deed dated 16.08.1985, executed in favour of defendant no.1 to 3 (the DEEPAK KUMAR BHARDWAJ 2024.02.29 10:44 I attest to the accuracy and integrity of this document appellants herein). At the time of sale deed, the defendants 2024:PHHC:025923 Regular Second Appeal No. 1223 of 1989 (O&M) 2 (appellants) purchased 155/1037th share in the land comprised in khewat no.308, as per jamabandi for the year 1978-1979. The trial court dismissed the suit as the plaintiffs failed to prove that they are is (sic) co-sharers. However, before the First Appellate Court, an application for additional evidence was allowed and the certified copy of the rectified decree sheet was permitted to be produced. Thereafter, the First Appellate Court accepted the appeal.
2. The appellants while filing this regular second appeal have also filed an application for additional evidence. Along with the application, a certified copy of the jamabandi for the year 1983-1984, with respect to the land comprised in khewat no.374 min is sought to be produced which shows that the defendants were already co-sharers in the khewat.
3. Faced with the aforesaid situation, the learned counsel representing the respondents prays for a short accommodation to inspect the record and assist the court.
4. Adjourned to 26.02.2024.
5. To be listed in the urgent list."
3. Today, the matter has again been heard at length. In fact, the plaintiffs have failed to prove their superior right of pre-emption on the basis of co-sharership to pre-empt the sale deed dated 16.08.1985 executed in favour of the appellants (defendant No.1 to 3). As per the provisions of the Punjab Pre-emption Act, 1913, the co-sharers have a superior right to pre- DEEPAK KUMAR BHARDWAJempt the sale deed executed by another co-sharer in favour of a stranger 2024.02.29 10:44 I attest to the accuracy and integrity of this document 2024:PHHC:025923 Regular Second Appeal No. 1223 of 1989 (O&M) 3 (who was not already a co-sharer in the same khewat). The plaintiffs produced the copy of jamabandi in the year 1978-79 with respect to khewat No. 308 and khatauni No. 352. A perusal of the aforesaid jamabandi proves that defendant No.1 to 3, namely Rama, Kiran Chand and Raj Kumar sons of Bishnu Dutt son of Bhagwan Sahai were already the co-sharers in khewat No. 308. This fact now stands corroborated from the copy of jamabandi for the year 1983-84. A copy of jamabandi in the year 1983-84 is Ex.P6 which proves that khewat No. 308 became khewat No. 374. In the aforesaid khewat, again Rama, Kiran Chand and Raj Kumar sons of Bishnu Dutt son of Bhagwan Sahai are recorded as co-owners. Hence, without taking into consideration the additional evidence, which is now sought to be produced, the judgment passed by the First Appellate Court is liable to be set aside.
4. In Indra Bai vs. Nand Kishore, (1990) 4 SCC 668, the Supreme Court held that pre-emption is a 'weak and inequitable right' which can be defeated by all legitimate means. In Atam Parkash vs. State of Haryana (1986) 2 SCC 249, the Five Judge Bench of the Supreme Court described the right of pre-emption based on consanguinity as 'feudal' 'piratical', 'tribal', 'weak', 'easily defeated' etc., therefore, declared ultra vires the Constitution. Subsequently, the Government of Haryana also recognised and repealed the pre-emption right in favour of co-sharer by Haryana Act No.10 of 1995. However, old cases are requried to be decided as per un- amended provisions as held by another 5 Judges Bench in Shyam Sunder and others vs. Ram Kumar and Another (2001) 8 SCC 24. It is evident that the First Appellate Court has failed to examine the copies of jamabandies for DEEPAK KUMAR BHARDWAJ 2024.02.29 10:44 the year 1978-79 and 1983-84.
I attest to the accuracy andintegrity of this document
2024:PHHC:025923 Regular Second Appeal No. 1223 of 1989 (O&M) 4
5. In view of the aforesaid discussion, the present appeal is allowed. The the judgment and decree passed by the First Appellate Court is set aside and that of the Trial Court is restored.
6. The miscellaneous application(s) pending, if any, shall stand disposed of.
(Anil Kshetarpal) Judge February 26, 2024 "DK"
Whether speaking/reasoned :Yes/No
Whether reportable : Yes/No
DEEPAK KUMAR BHARDWAJ
2024.02.29 10:44
I attest to the accuracy and
integrity of this document