Punjab-Haryana High Court
Dhani Ram vs Male Singh 7& Others on 9 April, 2025
Author: Suvir Sehgal
Bench: Suvir Sehgal
Neutral Citation No:=2025:PHHC:050166
RSA-17-1992
1992 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
102 RSA-17-1992
1992
Reserved on
on:16.01.2025
Pronounced on:
on:09.04.2025
DHANI RAM ...APPELLANT
VERSUS
NAFE SINGH & OTHERS ...RESPONDENTS
CORAM: HON'BLE MR. JUSTICE SUVIR SEHGAL
Present: Mr. Harshit Joon, Advocate &
Mr. Sagar Bathla, Advocate
for the appellant.
Mr. Ashish Gupta, Advocate
for respondent No.1.
Names of respondents No.22 to 10 being proforma respondents
have been ordered to be deleted from the array of parties
vide order dated 27.01.1994.
****
SUVIR SEHGAL, SEHGAL J.
1. Appellant/defendant No.1 is in second appeal assailing concurrent finding recorded by the two Courts ourts below below.
2. Respondent espondent No.1/plaintiff filed a suit for possession of 16 marlas land by way of pre-emption emption of sale deed dated 03.06.1986.
1986. His pleaded case is that he was co-sharer of unpartitioned land measuring g 7 kanals anals 6 marlas along with Bharat Singh and Vaid Singh.. Bharat Singh sold his 1/9th share, s that is 16 marlas, besides other agricultural land totalling g 18 1 of 6 ::: Downloaded on - 26-04-2025 04:48:17 ::: Neutral Citation No:=2025:PHHC:050166 RSA-17-1992 1992 -2- kanals 04 4 marlas to defendant No.1 vide sale deed dated 03.06.1986 for or a consideration of Rs.60,000/-. Claiming laiming that he is a co-sharer in Khewat No.89 witth Bharat Singh, plaintiff filed a suit for pre pre-emption of 16 marlas land asserting that inflated consideration oof Rs.30,000/-, has been mentioned in the sale deed. Upon being served, suit has been contested by defendant No.1, wherein whe he denied the status of the plaintiff as a co-sharer. Explaining xplaining the sale consideration, defendant No.1 averred that half the amount was paid as earnest money and the balance amount was paid at the time of registration of the sale deed. Defendant D No.1 claimed ed to be in possession of the suit land and stated that a similar suit had ha been filed by defendant No.1 No.10 at an earlier stage, but it was dismissed.
dismissed An objection on was taken that the suit is bad for partial pre-emption pre emption and that the plaintiff has not deposited the zarepanjam panjam.
Defendant efendant No.1 stated that he was a tenant in the suit land and had purchased it after paying the agreeed consideration of Rs.60,00 00/-.
Defendant efendants No.2 to 10 did not appear and were proceeded against ex parte.
parte Plaintiff filed a replication reasserting the averments of the plaint plaint. On n the basis of the pleadings of the parties, Trial rial Court framed issues. After the parties led evidence and were heard, vide judgment and decree dated 15.11.1990 1990, Trial Court decreed the suit suit. Defendant No.1 remained unsuccessful in the first appeal, which was dismissed by the learned Additional dditional District Judge, Jind, vide judgement dated 31 31.07.1991, resulted in the institution of the instant second appeal.
3. Counsel for the appellant has argued that a total of 18 kanal 4 marlas of land falling in three different kkhewat numbers was purchased by the appellant by virtue of sale deed dated 03 03.06.1986. He submits that respondent No.1/plaintiff is the co-sharer in khewat hewat No.89 to the extent of 7 2 of 6 ::: Downloaded on - 26-04-2025 04:48:18 ::: Neutral Citation No:=2025:PHHC:050166 RSA-17-1992 1992 -3- kanals anals 6 marlas.
marlas A suit for pre-emption emption of a part of the land sold to the appellant,, is not maintainable. He has placed reliance upon
(i) Ram Chand Versus Randhir Singh & others (1994) 6 SCC 552;
(ii) Banta Singh etc. versus Harbhajan Kaur etc. 1974 (2) ILR(Punjab) 178; and
(iii) Ganga Singh versus Naarinjan Singh,1969 Current Law Journal 177.
4. Per contra, counsel for respondent No.1 has urged that being a co-sharer, sharer, plaintiff hass a superior right of pre pre-emption emption and he is entitled to get a decree for possession in respect of the part of the property in which he has a joint holding.. He asserts that the plaintiff is entitled to claim pre-
pre emption in respect of a portion of the property so sold by virtue of sale deed dated 03.06.
.06.1986. Reference has been made by him to:
"(i) Basawa Singh Vs. Santa Singh and another 1966 (2) ILR (Punjab) (Punjab)202;
(ii) Moti Ram Versus
ersus Ba
Bakhwant Singh 1968 (1) ILR (Punjab) 104;
(iii) Phulla Singh an nd another Versus ersus Sulakhan Singh 1988 PLJ 15;; and
(iv) Umar Khan Versus Na Nawal Singh 2009 (4) PLR
338."
5. I have heard counsel for the parties and considered their the submission besides examining the Trial Court record.
6. In Shyam Sunder and others Versus Ram Kumar and another (2001) 8 SCC 24, 24 a five judges Bench ench of the Supreme Court has observed that in n modern times, times the he right of pre pre-emption based on statutes is a maligned law. Such a right is feudal,, archaic and outmoded although its 3 of 6 ::: Downloaded on - 26-04-2025 04:48:18 ::: Neutral Citation No:=2025:PHHC:050166 RSA-17-1992 1992 -4- origin gin is based on custom.
custom It was subsequently codified odified out of necessity for preservation integrity and maintenance of peace in the then village preservation, community and society. In changed change circumstances, the right may be outmoded, tmoded, but bu as long as it is statutorily utorily recognized it has to be given the same treatment as any other law deserves deserves. Noticing that the pre-emption emption right in favour of a co-sharer has been repealed by the Government overnment of Haryana vide Act Act No.10 of 1995, Supreme Court observed that this legislation is prospective in operation and does not affect the substantive or vested right of the parties.
parties Section 155 of the Punjab Pre-emption Act, 19 913 as substituted by the Haryana amendment iis not either expressly or by necessary implication retrospective spective in operation, which may affect the rights of the parties on the date of adjudication of the suit and is not required to be taken into consideration by the appellate C Court. This appeal, therefore, herefore, has to be decided on the basis of the law as it existed prior to the amend amendment of the Punjab Pre re-emption Act, 1913.
7. The he legal issue which has arisen for consideration in the instant appeal is as to whether partial pre-emption pre emption of a sale deed is permissible missible on the ground that the plaintiff was a co-sharer sharer only in one khewat and not in other khewats, khewats particularly when the sale ale deed ha had been executed with respect to agriculture land located in three different khewats. A Full Bench ench of this Court ourt in Banta Singh's case (supra supra) has held that a suit for partial pre-emption emption is not competent and such a suit has to be dismissed.
8. The question directly came ame up for consideration before a Division Bench B of this Court in Ganga Singh's case (supra) (supra).The he relevant observations of the Division Bench ench are reproduced hereunder hereunder:-
"..... In the first place it has not been brought to our notice what is the law of pre-emption law l 4 of 6 ::: Downloaded on - 26-04-2025 04:48:18 ::: Neutral Citation No:=2025:PHHC:050166 RSA-17-1992 1992 -5- prevailing in Oudh. IIn the second place, so far as the pre-emption emption law in Punjab is concerned, one rule is firmly settled that the right of pre pre-emption emption is a right of o substitution.. In other words, the name of the vendee is rubbed from the sale deed and that of the pre pre-emptor emptor is introduced therein. There is another way of looking at the matter. Supposing, the vendee pur purchases chases property for a particular purpose and by permitting partial pre pre-emption 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 down to that part of the property and it would ould 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-
pre emption being a right of substitution, the vvery ery 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 recorded above, these appeals fail and are dis dismissed.
missed. As there is no representation for the respondent, there will be no order as to costs."
9. A similar imilar view has been taken by two Coordinate Benchess of this Court ourt in Bal Ram Versus Smt. Sarbati 2010 (3) RCR (Civil) 561 and a Jadish Ch hander and others versus Prem m Lata and another, RSA No.38 819 of 1987 decided d on 16.02.2011.
10. Instant appeal has to be decided in view of the legal position noticed above.
above A perusal of the plaint shows that the plaintiff has filed a suit for possession by way of pre-emption pre emption of agriculture land measuring 16 marlas in khewat No.89, by averring that Bharat Singh sold his 1/9th share i.e. 7 kanals 6 marlas in this khewat. Suit uit has been filed for pre pre-emption emption of 5 of 6 ::: Downloaded on - 26-04-2025 04:48:18 ::: Neutral Citation No:=2025:PHHC:050166 RSA-17-1992 1992 -6- 16 marlas of land on payment of proportiona proportionate money. Itt has been pleaded that the plaintiff was a co-sharer althoughh he did not specify his share, along with defendant No.3 and Bharat Singh, deceased, who is represented by his legal reprresentatives, defendants No.2 to 9, by averring that Bharat Singh sold 16 marlas of suit land to defendant No.1 by virtue of sale deed dated 03.06.1986 1986 for an ostensible sale consideration of Rs.60,000/-. In n its written statement, defendant de No.1 has taken a specific objection that the suit land cannot be bifurcated from the other land purchased by virtue of the same sale deed and the suit for partial pre-emption emption is bad. Issue No.5 has been framed by the Trial Court on the objection taken by defendant No.1, No.1 however, without appreciating the legal position, this issue has been decided against defendant No.1 and the findings have been upheld by the First Appellate ppellate Court. The findings recorded ed by both the Courts under issue No.5 being contrary to the settled law, noticed above above, are liable to be reversed and set aside.. Judgements J relied upon by counsel for respondent No.1 would not come to his aid in view of the legal position as has been settled by a Full F Bench ench of this Court.
11. For or the foregoing reasons, appeal is allowed allowed. Judgements and decrees passed by the Courts ourts below are set aside and suit filed by respondent No.1/plaintiff is dismissed, though with no order as to costs costs.
09.04.2025
.04.2025 (SUVIR SEHGAL)
sheetal JUDGE
Whether Speaking/reasoned Yes/No
Whether Reportable Yes/No
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