Punjab-Haryana High Court
Darshan Singh And Ors vs Jagdish Singh And Anr on 17 July, 2024
Author: Alka Sarin
Bench: Alka Sarin
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
213 RSA-2495-1995 (O&M)
Date of Decision : 17.07.2024
DARSHAN SINGH & ORS. .... Appellants
VERSUS
JAGDISH SINGH & ANR. .... Respondents
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. P.S. Khurana, Advocate and
Mr. Navrajdeep Singh, Advocate for the appellants.
Mr. Pritam Singh Saini, Advocate and
Ms. Parul Saini, Advocate for the respondents.
ALKA SARIN, J. (ORAL)
1. The present appeal has been preferred by the defendant- appellants challenging the judgment and decree dated 04.10.1994 passed by the Trial Court and the judgment and decree dated 12.10.1995 passed by the First Appellant Court.
2. Brief facts relevant to the present case are that a suit was filed by the plaintiff-respondent No.1 for possession by way of pre-emption on the ground that he along with the vendor, namely, Jit Kaur (respondent No.2 herein) were co-sharers in the suit property and that the sale by Jit Kaur in favour of the defendant-appellants was made vide sale deed dated 03.04.1991 without notice to the plaintiff-respondent No.1.
3. The defendant-appellants filed a joint written statement raising various preliminary objections regarding the suit being bad for partial pre- emption as well as being barred by time. It was further the defence taken that AMAN JAIN 2024.07.18 09:37 I attest to the accuracy and integrity of this document 213 RSA-2495-1995 (O&M) -2- the plaintiff-respondent No.1 and his family members had participated in the bargain and the sale was with their consent. It was also the stand taken that the agreement to sell was signed by the father of the plaintiff-respondent No.1, namely, Dalip Singh. It was further the plea raised that the suit land had been orally partitioned amongst the co-sharers however the same was not implemented in the revenue records. It was also the plea raised that a specific khasra number had been sold and further the status of the plaintiff- respondent No.1 as a co-sharer was denied.
4. Replication was filed controverting the pleas taken in the written statement and reiterating those made in the plaint.
5. On the basis of the pleadings of the parties, the following issues were framed :
1. Whether plaintiff being co-sharer in the khewat comprising the suit land has got a superior right of pre-emption as alleged ? OPP
2. Whether the suit is bad for partial per-emption ?
OPD
3. Whether the suit is time barred ? OPD
4. Whether the suit has not been properly verified ?
OPD
5. Whether the amount of zerepanjam was not deposited within the stipulated period ? OPD
6. Whether the plaintiff is estopped by his own act and conduct form filing the suit ? OPD AMAN JAIN 2024.07.18 09:37 I attest to the accuracy and integrity of this document 213 RSA-2495-1995 (O&M) -3-
7. Whether the suit has not been properly valued for the purposes of Court fee and jurisdiction ? OPD
8. Whether in the event of decree of suit vendee/defendants are entitled to claim amount, earlier spent in effecting improvement over the suit land, if so, then what amount ? OPD
9. Relief.
Thereafter, vide order dated 25.05.1993 passed by the Trial Court, the following additional issues were also framed :
8-A Whether the plaintiff has waived his right of pre-
emption ? OPD 8-B Whether the plaintiff has got no cause of action ?
OPD 8-C Whether the suit is barred under Section 5 of the Pre-emption Act ? OPD
6. The Trial Court decreed the suit vide judgment and decree dated 04.10.1994. Aggrieved by the same an appeal was preferred by the defendant-appellants which appeal was dismissed vide judgment and decree dated 12.10.1995 passed by the First Appellate Court. It is to be noticed that the said appeal was clubbed with other appeals pending on the point of pre-
emption post the Punjab Pre-emption (Haryana Amendment) Act, 1995 (hereinafter referred to as '1995 Amendment'). Before the First Appellate Court the only plea raised was that the suit itself was liable to be dismissed on the account of the 1995 Amendment. The said plea was rejected by the AMAN JAIN 2024.07.18 09:37 I attest to the accuracy and integrity of this document 213 RSA-2495-1995 (O&M) -4- First Appellate Court. Aggrieved by the same, the present regular second appeal has been preferred by the defendant-appellants.
7. Learned counsel for the defendant-appellants would contend that the plea that the suit itself was not maintainable in view of the 1995 Amendment is no longer res integra in view of the judgment of the Hon'ble Supreme Court in the case of Shyam Sunder &Anr. V/s Ram Kumar &Anr. [2001 (3) RCR (Civil) 754]. However, learned counsel states that on merits the agreement to sell itself was witnessed by the father of the plaintiff-respondent No.1 and hence the plaintiff-respondent No.1 was barred from filing the suit for pre-emption. It is further the contention that the suit property had already been partitioned which was also apparent from the fact that a specific khasra number was sold.
8. Per contra, learned counsel for the respondents would contend that the only ground raised before the First Appellate Court was that the suit was barred in view of the 1995 Amendment and there was no other ground which was raised before the First Appellate Court.
9. Heard.
10. In the present case the only ground raised before the First Appellate Court by the present defendant-appellants was that the suit itself was barred by law in view of the amendment to the Pre-emption Act vide Amendment No.10 of 1995. The said controversy was put to rest by the Hon'ble Supreme Court in Shyam Sunder's case (supra) wherein it has been held as under :
AMAN JAIN 2024.07.18 09:37 I attest to the accuracy and integrity of this document
213 RSA-2495-1995 (O&M) -5-
'From the aforesaid decisions the legal position that emerges is that when a repeal of an enactment is followed by a fresh legislation such legislation does not effect the substantive rights of the parties on the date of suit or adjudication of suit unless such a legislation is retrospective and a court of appeal cannot take into consideration a new law brought into existence after the judgment appealed from has been rendered because the rights of the parties in an appeal are determined under the law in force on the date of suit. However, the position in law would be different in the matters which relate to procedural law but so far as substantive rights of parties are concerned they remain unaffected by the amendment in the enactment. We are, therefore, of the view that where a repeal of provisions of an enactment is followed by fresh legislation by an amending Act such legislation is prospective in operation and does not effect substantive or vested rights of the parties unless made retrospective either expressly or by necessary intendment. We are further of the view that there is a presumption against the retrospective operation of a statute and further a statute is not to be construed to have a greater retrospective operation than its language renders necessary, but an amending Act which affects AMAN JAIN 2024.07.18 09:37 I attest to the accuracy and integrity of this document 213 RSA-2495-1995 (O&M) -6- the procedure is presumed to be retrospective, unless amending Act provides otherwise. We have carefully looked into new substituted section 15 brought in the parent Act by Amendment Act 1995 but do not find it either expressly or by necessary implication retrospective in operation which may effect the right of the parties on the date of adjudication of suit and the same is required to be taken into consideration by the appellate Court. In Shantidevi (Smt) and another vs. Hukum Chand [1996 (5) SCC 768] this Court had occasion to interpret the substituted section 15 with which we are concerned and held that on a plain reading of section 15 it is clear that it has been introduced prospectively and there is no question of such section affecting in any manner the judgment and decree passed in the suit for pre-emption affirmed by the High Court in the second appeal. We are respectfully in agreement with the view expressed in the said decision and hold that the substituted Section 15 in the absence of anything in it to show that it is retrospective, does not effect the right of the parties which accrued to them on the date of suit or on the date of passing of the decree by the Court of first instance. We are also of the view that present appeals are unaffected by change in law in so AMAN JAIN 2024.07.18 09:37 I attest to the accuracy and integrity of this document 213 RSA-2495-1995 (O&M) -7- far it related to determination of the substantive rights of the parties and the same are required to be decided in light of law of preemption as it existed on the date of passing of the decree.' The argument of the learned counsel for the defendant- appellants that the agreement to sell was witnessed by Dalip Singh i.e. the father of the plaintiff-respondent No.1 would not come to his aid inasmuch as even if the agreement to sell was witnessed by his father, the same would not operate as a bar qua the plaintiff-respondent No.1 who is a co-sharer in the property in his own right. Second argument of the learned counsel for the defendant-appellants that since a specific khasra number was sold by respondent No.2-Jit Kaur, hence, the same goes on to show that the suit land had been partitioned also deserves to be rejected. There is not an iota of evidence on the record to even remotely suggest that the suit land had ever been partitioned. The argument of the learned counsel for the defendant- appellants that since a specific khasra number has been sold, hence, that would depict partition, is also noticed only to be rejected.
11. The Hon'ble Division Bench of this Court in the case of Bhartu Vs. Ram Sarup, [1981 PLJ 204] has held that a co-owner is an owner in every inch of the land. It was held as under :
"(a) A co-owner has interest in the whole property and also in every parcel of it.
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213 RSA-2495-1995 (O&M) -8- (2) Possession of joint property by one co-owner, is the eye of law, possession of all even if all but one are actually out of possession.
(3) A mere occupation of a larger portion or even of entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all.
(4) The above rule admits of no exception when there is ouster of a co-owner by another. But in order to negative the presumption of joint possession on behalf of all, on the ground of ouster, the possession of a co-owner must not only be exclusive but also hostile to the knowledge of the other as, when a co-owner openly asserts his own title and denies that of the other.
(5) Passage of time does not extinguish the right of the co-owner who has been out of possession of the joint property except in the event of ouster or abandonment. (6) Every co-owner has a right to use the joint property in a husband like manner not inconsistent with similar rights of other co-owners.
(7) Where a co-owner is in possession of separate parcels under an arrangement consented by the other co- owner, it is not open to anybody to disturb the AMAN JAIN 2024.07.18 09:37 I attest to the accuracy and integrity of this document 213 RSA-2495-1995 (O&M) -9- arrangement without the consent of others except by filing a suit for partition.
8. A co-sharer in possession can certainly ask for injunction against a co-sharer not in possession restraining the latter from resorting to force and ousting him."
12. The co-sharer though in possession of a specific Khasra number would be considered as a co-sharer in every inch of the joint land till the land is partitioned.
13. In view thereof, I do not find any merit in the present appeal. No question of law much less substantial question of law arises in the present case. The appeal being devoid of any merit is accordingly dismissed. Pending applications, if any, also stand disposed off.
17.07.2024 (ALKA SARIN)
Aman Jain JUDGE
NOTE: Whether speaking/non-speaking: Speaking
Whether reportable: Yes/No
AMAN JAIN
2024.07.18 09:37
I attest to the accuracy and
integrity of this document