Punjab-Haryana High Court
(O&M) Chander Singh And Others vs Tek Ram And Others on 6 February, 2025
Sr.No.141
ASHISH
2025.02.28 13:18 Page 1 of 16
I attest to the accuracy and
integrity of this judgment/order
ASHISH
2025.02.28 13:18 Page 2 of 16
I attest to the accuracy and
integrity of this judgment/order
ASHISH
2025.02.28 13:18 Page 3 of 16
I attest to the accuracy and
integrity of this judgment/order
"xxxx xxxx xxxx
[13] Before adverting to the merits of the case, I deem it
appropriate to test the suit on the touch stone of the ratio of law
laid down by Hon'ble the Supreme Court in 'Jhabbar Singh's
case (supra). The plaintiffs filed instant suit, claiming superior
right being co-sharers and thus asserted that they are entitled to
pre-empt the sale deed, drawing strength from the Punjab Pre-
emption Act, 1913.Trite it is that the right of pre-emption is a weak
right and has to be construed strictly. The Supreme Court in Atam
Parkash vs. State of Haryana (1986) 2 SCC 249 deprecated the
right of pre-emption based on consanguinity as 'feudal',
'piratical', 'tribal', 'weak', 'easily defeated' and declared the
same to be ultra vires of the Constitution of India.
[14] The pre-emptor cannot succeed in a suit, asserting right of
pre-emption merely by proving that he is co-sharer. Chapter 4 of
ASHISH
2025.02.28 13:18 Page 4 of 16
I attest to the accuracy and
integrity of this judgment/order
the 1913 Act provides for procedure. Sections 19, 20 & 21 reads
as under:-
" 19. Notice to pre-emptors.-When any person proposes to
sell any agricultural land or village immoveable property
or urban immoveable property or to foreclose the right to
redeem any village immoveable property or urban
immoveable property, in respect of which any persons have
right of pre emption, he may give notice to all such persons
of at which he is willing to sell such land or property or of
the amount due in respect of the mortgage, as the case may
be.
Such notice shall be given through any Court within
the local limits of whose jurisdiction such land or property
or any part thereof is situate, and shall be deemed
sufficiently given if it be stuck up on the chaupal or other
public place of the village, town or place in which the land
or property is situate.
20. Notice by pre-emptor to vendor.- The right of pre-
emption of any person shall be extinguished unless such
person shall, within the period of three months from the date
on Which the notice under section 19 is duly given or within
such further period, not exceeding one year from such date,
as the Court may allow, present to the Court a notice for
service on the vendor or mortgagee of his intention to enforce
his right of pre-emption. Such notice shall state whether the
pre-emptor accepts the price or amount due on the footing of
the mortgage as correct or not, and if not what sum he is
willing to pay
When the Court is satisfied that the said notice has -been
duly served on the vendor or mortgagee, the proceedings shall
be filed.
[15] Thus, a pre-emptor apart from proving himself as co-sharer
is also required to prove that the vendor in the sale deed sought to
be pre-empted did not give notice to all persons having right of
pre-emption of the price at which he was willing to sell land.
Section 20 provides that any person in receipt of notice under
Section 19 extinguishes his right unless he expresses his intention
to exercise his right of pre-emption within a period of 03 months
from the date of receipt of notice under Section 19. Thus, statute
ASHISH
2025.02.28 13:18 Page 5 of 16
I attest to the accuracy and
integrity of this judgment/order
casts duty upon the plaintiffs, enforcing right of pre-emption to
plead that there was no notice from vendor under Section 19. In
case notice under Section 19 was served on pre-emptor, he
responded to the same within the time period prescribed to save
his right from being extinguished under Section 20 of the 1913 Act.
Court prior to decreeing the suit of pre-emptor has to return
finding that Section 19 was not complied with or if complied with,
vendor executed sale deed despite the pre-emptor expressing his
intention to pre-empt the sale deed. For returning such finding
vendor is necessary. Such plea is directed against vendor and in
his absence, the issue of compliance of Section 19 cannot be
adjudicated.
[16] The plaintiffs impleaded vendor as a party initially but gave
him up. The question thus arises is:-
Whether suit filed by the plaintiffs could have been
decreed after plaintiffs gave up the vendor?
[17] Hon'ble the Supreme Court in case of 'Jhabbar
Singh'(supra) answering somewhat similar situation held as
under:-
"12. At the outset, it may be noted that the plaintiff Jagtar
Singh, the predecessor of the present respondent, had filed
the suits claiming himself to be the co-sharer in the joint
khewat along with the vendor Jit Singh, and had sought
relief against the defendant Jhabbar Singh and others with
regard to the possession of the suit lands, on the ground
that he as a co-sharer had a superior right to pre-empt the
sales, and that he was not put to any notice of sale of the
suit lands on or before the date of such sales. In a very
loosely drafted plaint, the plaintiff had neither pleaded as
to how he was the co- sharer, nor had he impleaded the
said Jit Singh, the owner of the suit lands, with whom he
claimed to be the co-sharer, and who had sold the suit
lands to the defendants Jhabbar Singh and Others. It is
needless to say that in a suit for pre-emption, the vendor
i.e., the owner of the suit land who had allegedly not given
any notice of sale to the plaintiff as required to be given
under Section 19 of the Pre-emption Act and against whom
the right to pre-empt the sale is claimed would be a proper
ASHISH
2025.02.28 13:18 Page 6 of 16
I attest to the accuracy and
integrity of this judgment/order
party if not a necessary party, for a complete and final
adjudication on the issues involved in the suit.
13. As held by this Court in U.P. was Evam Vikas Parishad
vs.Gyan Devi, necessary party is one without whom no
order can be made effectively; and a proper party is one
in whose absence an effective order can be made but
whose presence is necessary for a complete and final
decision on the question involved in the proceedings.
When a right to pre-empt the sale was claimed by the
plaintiff Jagtar Singh as a co-sharer in the lands along
with the owner Jit Singh, alleging that the mandatory
provisions contained in Section 19 i.e., for giving notice to
the pre-emptor, was not complied with by the owner or
seller Jit Singh, his presence as the party defendant was
desirable along with the other defendants Jhabbar Singh
and Others, to effectively and finally decide the disputes
between the parties. Though, Order I, Rule 9 states that no
suit shall be defeated by reasons of the misjoinder or non-
joinder of parties, care must be taken by the court to
ensure that all the parties, be it the plaintiff or the
defendant, whose presence is necessary for complete and
final adjudication on the issues involved in the suit, are
before the court. That is the reason why the courts are
empowered to strike out or add parties, at any stage of the
proceedings as per Order I, Rule 10, C.P.C.
14. Further, having regard to the absolutely sketchy and
loosely drafted plaint in the instant case, the Court is
tempted to regurgitate the basic and cardinal rule of
pleadings contained in Order VI, Rule 2(1) of the Code,
according to which every pleading (i.e., plaint or written
statement) has to contain a statement in concise form of
the material facts on which the party pleading relies for
his claim or defence, as the case may be. Of course, the
pleading need not contain the evidence by which such
material facts are to be proved, nonetheless the facts
necessary to formulate a complete cause of action i.e., the
material facts must be stated. Omission of a single
material fact would lead to an incomplete cause of action
and in that case, the statement of claim would become bad
in the eye of law.
15. Now, so far as the right of pre-emption is concerned,
it may be noted that it is a very weak right and could be
defeated by all legitimate methods. This Court as back as
in 1958, in case of Bishan Singh and Others vs. Khazan
ASHISH
2025.02.28 13:18 Page 7 of 16
I attest to the accuracy and
integrity of this judgment/order
Singh & Another (supra), had set-forth the contours of the
right of pre-emption. It was opined therein by the four-
Judge Bench that-
"11.....The right of pre-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 has a secondary right
or a remedial right to follow the thing sold. (3) It is
a right of substitution but not of re-purchase i. e.,
the pre-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 the claimant
of a superior or equal right being substituted in his
place."
16. The afore-stated position was reiterated by this Court
in Barasat Eye Hospital vs. Kaustabh Mondal, and again
in the recent decision in case of Raghunath (Dead) by LRs.
vs. Radha Mohan (Dead) Through LRs. And Others4,
wherein it has been observed as under: -
"14. We have given our thoughtful consideration to
the aforesaid issue and in order to determine the
same, we had, at the inception itself, set out the
judgment in Barasat Eye Hospital case [Barasat
Eye Hospital v. Kaustabh Mondal, (2019) 19 SCC
767 : (2020) 4 SCC (Civ) 810]. We have thus,
referred to the earlier judicial view in para 10 of the
judgment extracted aforesaid. The historical
perspective of the right of pre-emption shows that it
owes its origination to the advent of the
Mohammedan rule, based on customs, which came
to be accepted in various courts largely located in
the north of India. The pre-emptor has been held by
the judicial pronouncements to have two rights.
Firstly, the inherent or primary right, which is the
right to the offer of a thing about to be sold and the
secondary or remedial right to follow the thing sold.
It is a secondary right, which is simply a right of
substitution in place of the original vendee. The
ASHISH
2025.02.28 13:18 Page 8 of 16
I attest to the accuracy and
integrity of this judgment/order
pre-emptor is bound to show that he not only has a
right as good as that of the vendee, but it is superior
to that of the vendee; and that too at the time when
the pre-emptor exercises his right. In our view, it is
relevant to note this observation and we once again
emphasise that the right is a "very weak right" and
is, thus, capable of being defeated by all legitimate
methods including the claim of superior or equal
right."
17. At this juncture, it would be also apt to mention that
apart from the fact that the right of pre-emption is very
weak right and capable of being defeated by all legitimate
methods, the pre-emptor must establish that he had the
right to pre-empt on the date of sale, on the date of the
filing of the suit and on the date of the passing of the decree
by the Court of the first instance. The pre-emptor or the
claimant-plaintiff who claims the right to pre-empt the sale
on the date of sale, has also to prove that such right
continued to subsist till the passing of the decree of the first
court. If the claimant-plaintiff loses that right or the
vendee improves his right equal or above the right of the
claimant before the adjudication of the suit, the suit for
pre-emption would fail.
18. This proposition of law has been well settled by this
Court since 1971, in case of Bhagwan Das (Dead) by LRS
and Others vs. Chet Ram 1971 (1) SCC 12. In the said
case, this Court had approved the full bench decision of
Punjab High Court in Ramji Lal and Another vs. The
State of Punjab and Others, AIR 1966 P&H 374, which
had ruled that a pre-emptor must maintain his
qualification to pre-empt upto the date of the decree."
[
ASHISH
2025.02.28 13:18 Page 9 of 16
I attest to the accuracy and
integrity of this judgment/order
xxxx xxxx xxxx
ASHISH
2025.02.28 13:18 Page 10 of 16
I attest to the accuracy and
integrity of this judgment/order
ASHISH
2025.02.28 13:18 Page 11 of 16
I attest to the accuracy and
integrity of this judgment/order
ASHISH
2025.02.28 13:18 Page 12 of 16
I attest to the accuracy and
integrity of this judgment/order
ASHISH
2025.02.28 13:18 Page 13 of 16
I attest to the accuracy and
integrity of this judgment/order
ASHISH
2025.02.28 13:18 Page 14 of 16
I attest to the accuracy and
integrity of this judgment/order
.
ASHISH
2025.02.28 13:18 Page 15 of 16
I attest to the accuracy and
integrity of this judgment/order ASHISH 2025.02.28 13:18 Page 16 of 16 I attest to the accuracy and integrity of this judgment/order