Punjab-Haryana High Court
Jeet Ram (Since Deceased vs Sadhu Ram (Since Deceased on 11 December, 2013
Author: K. Kannan
Bench: K. Kannan
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Regular Second Appeal No.1120 of 1985 (O&M)
Date of decision: 11.12.2013
Jeet Ram (since deceased, through his LRs) son of Dal Singh,
resident of Village Karkauli, Tehsil Jagadhri, District Ambala, and
others.
... Appellants.
versus
Sadhu Ram (since deceased, through his LRs) son of Kundan,
resident of Village Karkauli, Tehsil Jagadhri, District Ambala, and
another.
.... Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
----
Present: Mr. Sudhir Mittal, Advocate,
for the appellants.
Mr. K.S. Sidhu, Senior Advocate, with
Mr. M.S. Brar, Advocate,
for the respondents.
----
1. Whether reporters of local papers may be allowed to see the
judgment ? No.
2. To be referred to the reporters or not ?No.
3. Whether the judgment should be reported in the digest ?No.
----
K.Kannan, J.
1. The plaintiffs' suit for enforcing a right of preemption regarding land measuring 21 kanals 13 marlas which was said to be a half share in a total extent measuring 45 kanals 13 marlas in Karkauli village to interdict a sale made on 15.05.1980 by Kashmiri Lal. The suit had been originally dismissed but in the appeal filed to the Additional District Judge, Ambala in Civil Appeal No.183/13 of 1983, the appellate Court reversed the decision dated 25.03.1985 Kumar Sanjeev 2013.12.13 10:41 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.1120 of 1985 (O&M) -2- and decreed the plaintiffs' suit on condition that they should deposit `67,500/- including the sale price and stamp charges less the amount already deposited on 02.05.1985. The defendants whose sale has been preempted at the instances of the plaintiffs are the appellants before this Court.
2. The defendants' contention was rested on the fact that the original owner Kashmiri Lal had effected two sales, one on 15.05.1980 with reference to 14 kanals 17 marlas which is the subject of suit and yet another sale on 10.11.1980 in favour of the plaintiffs themselves in respect of 21 kanals 13 marlas. The suit was dismissed on the ground that there had been an order passed by the Assistant Collector, 1st Grade (Ex.D10) and the Collector, Jagadhri directing partition to be effected and Naksha Be prepared and, therefore, the plaintiffs were no longer co-sharers in the suit land and thus no statutory right to preemption could be claimed. The appellate Court reversed the decision on a finding that the direction for preparation of Naksha Be was not relevant but what was essential was the actual physical partition and delivery of possession. The Court relied on judgments of this Court to hold that there had been no actual partition made and possession taken pursuant to the document and consequently, the plaintiffs must be taken as still the co-owners, who had a preferential right of preemption.
Kumar Sanjeev 2013.12.13 10:41 I attest to the accuracy and integrity of this document chandigarh
Regular Second Appeal No.1120 of 1985 (O&M) -3-
3. The issue before this Court is only whether the document directing partition must be taken as terminus quo of the relationship as co-owners and that whether the actual partition of physical possession has to be proved to deny the right of preemption. In Pritam Singh Versus Jaskaur Singh-1992(2) PLR 742, the issue was when partition could be taken as completed. The Court observed that when the revenue officer caused an instrument of partition to be prepared, the date on which partition was to take effect was to be recorded in that instrument. The instrument of partition itself is required to be prepared only after the partition was completed. The joint status of party would come to an end, once the partition order was passed and the partition itself will not be effective in the absence of instrument of partition. Preparation of 'Naksha Be' cannot amount to cessation of ownership. It is the instrument of partition which will create the division. Applying to this case, it cannot be stated that partition had been effected till the instrument of partition was prepared and considering the fact that the suit had been disposed of on 27.08.1983 and sanad takseem had been prepared only subsequently on 29.08.1983, the partition could not be said to have been effected on the date when the suit was disposed off.
4. There have been decisions clearly laying down that the right to preemption as a co-owner must exist on the day when a Kumar Sanjeev 2013.12.13 10:41 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.1120 of 1985 (O&M) -4- decree was passed. The right existed on the date of suit and the subsequent order of partition order will not take away that right.
5. There is a second string to the bow, as it were, that the appellants canvas by means of an application filed under Order 41 Rule 27 CPC. The defendants would refer to yet another purchase which he had made on 10.11.1980 in respect of 21 kanals 13 marlas which had also been a subject of challenge by the plaintiffs. The plaintiffs' suit to interdict the said sale deed dated 10.11.1980 was dismissed on 01.09.1983. That judgment became final and the plaintiffs did not challenge the correctness of the said decree. By the fact that at the time when the appeal in this case was pending, the defendant had, therefore, become a separate owner of the property under the Sanad Takseem prepared on 29.08.1983 and consequently, the appellate Court ought to have taken note of the fact that he had ceased to a co-owner on the day when the appellate Court was deciding by virtue of his own purchase having been held to be not pre-emptible. It is therefore contended that the plaintiffs, therefore, cannot secure a decree. The learned counsel appearing on behalf of the appellants would contend that a right of preemption itself is a weak right and, therefore, any change that has taken place must be taken notice if that would come in the way of enforcement of right of preemption. The counsel for the appellants would refer me to the decision in Krishan Kumar Versus Smt. Devki Rani-1994(1) PLR Kumar Sanjeev 2013.12.13 10:41 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.1120 of 1985 (O&M) -5- 295 to contend that where the plaintiff was careless in not filing a suit against proper parties and amendment had been made subsequently, whose sale was sought to be preempted, the Court held that the right would be lost by any mistake committed by the plaintiff in not suing against the correct persons initially and it could not be corrected by mere amendment later. The learned counsel would argue if the plaintiffs' suit had been originally dismissed and the appellants were seeking for a decree only at the appellate Court, if by that time a partition had been effected taking note of yet another sale dated 10.11.1980, it only means that at the time when the appellate Court was passing a decree, there had been no co-ownership between them. If the decree had been passed by the trial Court itself, then a subsequent partition may not have a difference. On the other hand, if the first court itself had not passed a decree, then the appellate Court could not have been passed when the partition had taken place.
6. I would reject the argument made by the counsel for the appellants for the only reason that when the appellate Court was allowing the appeal, it did what the trial Court ought to have done. It was setting aside a finding of the trial Court that till an instrument of partition was made, the co-ownership was not disturbed. If the trial Court had, therefore, committed a mistake by taking the initial orders of preparation by 'naksha be' to complete a partition, then it Kumar Sanjeev 2013.12.13 10:41 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.1120 of 1985 (O&M) -6- was the date when the first appellate Court disposed of a claim to preemption that would be relevant. The appellate Court judgment must be taken as completely supplanting the right which the plaintiffs had at the time when the suit was filed and when the Court passed a judgment. The status of the party must be seen on the date when the right must be taken to have fructified when the first suit was taken up for consideration for final disposal. The effect of the appellate Court's judgment must be taken as available on the day when the first court itself passed the decree. Consequently, the fact that there had been a partition effected subsequent to the date dismissal by the first court cannot be taken as material. The plaintiffs cannot lose out on the right which was available on the date of suit and till the date when the decree ought to have been passed in their favour, but denied to them by a wrong application of law by the trial Court. I will, therefore, not take as relevant the fact of dismissal of the plaintiffs' suit in respect of yet another transaction dated 10.11.1980 which could not be preempted at their instance.
7. The judgment of the court below is confirmed and the second appeal is dismissed with costs. Counsel's fee `5,000/-.
(K.KANNAN) 11.12.2013 JUDGE sanjeev Kumar Sanjeev 2013.12.13 10:41 I attest to the accuracy and integrity of this document chandigarh