Punjab-Haryana High Court
Lilu Ram And Ors. vs Smt. Sohni on 10 October, 2007
Equivalent citations: (2008)149PLR91, AIR 2008 (NOC) 1132 (P. & H.)
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
JUDGMENT Satish Kumar Mittal, J.
1. This judgment shall dispose of three Regular Second Appeals bearing Nos. 2579 of 1993, 2580 of 1993 and 512 of 1994. These appeals have been filed by same defendants against the judgments and decree passed in three different suits filed by respondent Smt. Sohni for pre-empting three sale deeds in favour of the defendants.
2. In the present case, the defendant-appellants purchased 19 kanals 6 marlas of land from two co-sharers Mahabir and Babu Ram in the joint khewat Nos. 41, 42 and 111 situated in village Chhatarian vide registered sale deed dated 12.6.1989. They also purchased 9 kanals 14 marlas of land from Nand Lal, who was a co-sharer in the same joint khewat vide registered sale deed dated 17.8.1989. They further purchased 29 kanals 1 marla of land from Smt. Bhagwanti and Smt. Santo, daughters of and Raju son of Phool Chand.
3. The respondent-Smt. Sohni filed three different suits for possession by way of pre-emption under Section 15 of the Punjab Pre-emption Act, 1913 for pre-empting above said three sales of the land made by co-sharers Mahabir, Babu Ram, Nand Lal, Smt. Bhagwanti, Smt. Santo and Raju on the ground that the plaintiff was having preferential right of pre-emption being co-sharer in the joint khewat from which the above said land was sold by co-sharers to the defendant-appellants, who are totally strangers to the joint khewat.
4. The defendant-appellants contested the suit, inter-alia, on the grounds that in the revenue record the plaintiff has been wrongly shown as co-sharer. The sale deeds were registered with the consent of the plaintiff, therefore, she is not entitled to pre-empt these sales. It is further contended that the plaintiff has inherited the land in the joint khewat from her husband Khiali Ram, who was the brother of the father of the vendors, therefore, the plaintiff has no right of pre-emption. The possession of the suit land was taken by the defendant-appellants two years prior to the sale deeds after paying the earnest money and since then the defendants are in exclusive possession of specific killa numbers, therefore, the plaintiff cannot be deemed to be the co-share in the suit land at the time of registration of the sale deed and at the time of filing the suits for pre-emption. It has also been pleaded that after purchase of the land, the defendants have spent some amount on the improvement of the suit land and in case the suit is decreed, the defendants are entitled to recover the said amount along with the sale consideration from the plaintiff.
5. On the pleadings of the parties, the following issues were framed in Civil Suit No. 1009 of 1990:
1. Whether the plaintiff has a superior right to pre-empt the sale in question as alleged? OPP.
2. Whether the sale took place for a consideration of Rs. 50,000/- which was fixed in good faith and actually paid? OPD
3. If issue No. 2 is not proved, what was the market value of the suit land at the time of sale in question? OPP
4. Whether the suit is not maintainable in the present form as alleged in additional objection No. 1 of the written statement? OPD
5. Whether the defendants are entitled to stamp and registration charges, if so, to what amount? OPD
6. Whether the defendants are entitled to improvement charges, if so, to what amount? OPD
7. Relief.
6. Similar issues were framed in other two suits. After taking into consideration the evidence led by the parties, the trial court decreed the suits of the plaintiff for possession by way of pre-emption with costs on payment of Rs. 56,800/- minus 1/5th pre-emption money already deposited, within two months i.e. upto 14.8.1993 (in Civil Suit No. 1009 of 1990), Rs. 29,600/- minus 1/5th pre-emption money already deposited, on or before 14.8.1993 (in Civil Suit No. 1193 of 1990) and Rs. 82,275/- minus 1/5th pre-emption money already deposited, on or before 9.1.1994 (in Civil Suit No. 108-C of 1992). It has been held that the plaintiff was. a co-sharer in the khewats from which the suit land was purchased by the defendants. It was held that Shri Khiali Ram, the husband of the plaintiff, who was co-sharer in the joint khewat and the plaintiff had inherited his hare in the joint land, and thereafter she became co-sharer in the joint khewat. It has also been held that till the decree of the suit, the joint land was not partitioned. Therefore, the suits were decreed while holding that the plaintiff was co-sharer in the joint khewat from which the land was sold, on the date of sale, on the date of filing of the suit and on the date of passing of the decree.
7. Against the judgments and decree of the trial court, the defendants filed the appeals before the first Appellate Court. Before the first Appellate Court the defendant-appellants only assailed the finding of the trial court on issue No. 1 and not on other issues. The first Appellate Court while dismissing the appeals affirmed the findings of the trial court on issue No. 1 and has held that as per the jamabandies for the year 1984-85 (Ex.P3 to Ex.P5), Khiali Ram, husband of the plaintiff was recorded to be a co-sharer in the three khewats along with the vendors and others. Admittedly, Khiali Ram had died and the plaintiff has inherited his share in the joint land being his widow. The mutation of inheritance of the share of Khiali Ram was sanctioned in favour of the plaintiff vide Mutation No. Ex.P2. Since the joint khewat was not partitioned, it was held that on the date of sale, on the date of filing of the suit and on the date of passing of the decree, the plaintiff remained as a co-sharer in the three khewats.
8. An argument was also raised before the first Appellate Court that the defendants had purchased 9 kanals 14 marls of land from Nand Lal vide registered sale deed dated 17.8.1989 (Ex. D1) and 29 kanals 1 marla of land from Bhagwanti etc. vide registered sale deed dated 28.1.1991 (Ex.D2). Therefore, by these two sale deeds, they have become co-sharers in the suit land. Thus, their status have improved, therefore, the suit of the plaintiff for pre-emption with regard to the sale deed dated 12.6.1989 cannot be decreed. This contention was rejected by the first Appellate Court in view of Section 28-A of the Punjab Pre-emption Act and a decision of this Court in Smt. Maya Devi and Anr. v. Rameshwar while observing that when the suit for pre-emption has been filed with regard to two subsequent sale deeds, then it cannot be argued that the vendee has improved his status on the basis of those sale deeds. Against the judgment and decree passed by the courts below, the defendants have filed these three appeals.
9. Counsel for the appellants while referring to the decision of the Supreme Court in Lachhman Dass v. Jagat Ram and Ors. (2007-2) 146 P.L.R. 297 (S.C.) submitted that though the right of pre-emption is a. statutory right but this right is a very weak right. Therefore, the court while granting the relief in favour of a pre-emptor, must bear it in mind about the character of the right, vis-a-vis, the right of the vendee, who has a constitutional and human right to purchase and own the property. He further submitted that the right of the vendee to hold the property cannot be taken away except in accordance with the provisions of the statute. If a superior right to hold a property is claimed, the procedures therefor must be complied with. He submitted that in the present case the plaintiff Smt. Sohni claimed the superior right of pre-emption on the ground of co-sharer in the joint khewat, but she has not placed on record any jamabandi in which, she was recorded as co-sharer in the joint khewat from which the appellants had purchased the suit property from other co-sharers. He further submitted that the jamabandi Ex.P3 and the mutation Ex.P2 placed on record by the plaintiff, are not the documents of title and from these documents it cannot be proved that the plaintiff was co-sharer in the joint khewat. In this regard, learned Counsel for the appellants referred to the judgment of the Supreme Court in Nagar Palika, Jind v. Jagat Singh (1995-3) 112 P.L.R. 224 (S.C.), judgment of the Madras High Court in Arulmigu Visweswaraswami v. R.V.E. Venkatachala Gounder 1997 (1) C.C.C. 574 (Madras) and a judgment of the Bombay High Court in Ramaji Batanji v. Manohar Chintaman and Ors. , wherein it has been held that the jamabandis and the mutation are not the documents of title. Learned Counsel further submitted that in the present case the plaintiff herself did not appear in the witness box and her son Om Parkash, who was her general power of attorney; had appeared as a witness and made a statement that his mother was a co-sharer in the joint khewat. Learned Counsel while relying on the judgment of the Supreme Court in Janki Vashdeo Bhojwani and Anr. v. Indusind Bank Ltd. and Ors. submitted that when a party to the suit does not appear in the witness box, then adverse inference should have been taken against him to the effect that he has not proved his case. Learned Counsel submitted that the courts below have not properly considered the aforesaid facts and decreed the suit of the plaintiff while coming to a wrong conclusion that the plaintiff was a co-sharer in the joint khewat on the date of sale, on the date of filing of the suit and on the date of the decree.
10. On the other hand, learned Counsel for the plaintiff-respondent submitted that in the instant case both the courts below have recorded a pure finding of fact on the basis of the evidence led by the parties to the effect that the plaintiff was co-sharer in the khewats from which the suit land was purchased by the defendants on the date of sale, on the date of filing of the suit and on the date of the decree. It was held that the husband of the plaintiff Khiali Ram was co-sharer in the joint khewat and the plaintiff had inherited the suit land from her husband and thereafter she became co-sharer in the joint khewat. It has been further held that till the decree of the suit, the joint land was not partitioned. Therefore, the said finding of fact does not require any interference in this Regular Second Appeal. Learned Counsel further submitted that even in the written statement the defendants have denied the co-sharership of the plaintiff only on the ground that the vendors of the defendants sold the specific land to them and the possession of the specific khasra numbers was given to them, therefore, the vendee cannot be taken as a co-sharer in the suit land. Learned Counsel further submitted that in the written statement it was not denied that Khiali Ram, husband of the plaintiff was a co-sharer and after his death, the plaintiff had inherited his share in the joint khewat. Learned Counsel further submitted mat a perusal of the sale deeds clearly indicates that the defendant-appellants had purchased the shares from the joint khewat from different vendors by three different" sale deeds and it cannot be said that they had purchased specific khasra numbers. Learned Counsel contends that if the sale was of specific khasra numbers from the joint land, even then in view of the law Lald down by the Full Bench of this Court in Bhartu v. Ram Sarup 1981 P.L.J. 204, the sale of the specific khasra numbers in the joint khewat by a co-sharer amounts to be a sale of share in the joint khewat. Learned Counsel submits that there is no illegality or perversity in the impugned judgments and decree passed by both the courts below, therefore, the appeals filed by the appellants are liable to be dismissed.
11. After hearing the arguments of the learned Counsel for the parties and going through the record of the case, I do not find any merit in the appeals filed by the defendant-appellants. In my opinion, both the courts below after appreciating the evidence led by the parties, have recorded a pure finding of fact that on the date of sale, on the date of filing of the suits and on the date of the decree, the plaintiff-respondent was a co-sharer in the joint khewat from which the defendant-appellants had purchased the land from some of the co-owners by three sale deeds. The said finding has been recorded on the basis of documentary evidence available on the record, i.e., Mutation Ex.P2, vide which mutation of inheritance of the share of Shri Khiali Ram was sanctioned in favour of the plaintiff. The Jamabandies Ex.P3 to P5 are pertaining to three khewats, i.e. 41, 42 and 111, in which Shri Khiali Ram was shown to be a co-sharer in all the three khewats.
12. The right of pre-emption given to a co-sharer was a statutory right at the relevant time though now this right has been taken away by effecting amendment in the Punjab Pre-emption Act vide Haryana Amendment Act No. 10 of 1995. The Supreme Court in Shyam Sunder and Ors. v. Ram Kumar and Anr. has held that the amending Act is prospective in operation and it does not affect the rights which had accrued to the parties to the pre-emption suit on the date of the suit or on the date of passing of the decree by court of first instance. Therefore, it has been held that the provisions of the Amending Act are not applicable on the pending appeals. Accordingly, these three appeals are to be considered and decided on the basis of the law existing prior to the aforesaid amendment.
13. In Atom Prakash v. State of Haryana where the constitutional validity of the provisions of Punjab Pre-emption Act was considered, the right of pre-emption given to a co-sharer was held to be valid as this right held to be a reasonable restriction on the right to hold, acquire or dispose of property conferred by Article 19(1)(f) of the Constitution. The right of pre-emption given to a tenant on the land was also held to be valid, whereas the right of pre-emption given on the basis of relationship was declared to be ultra vires of the Constitution. Therefore, the right of pre-emption may be a weak right as held by Supreme Court in Lachhman Dass 's case (supra), but it is a statutory right which was held to be constitutionally valid right. In Shyam Sunder's case (supra), it was held that a co-sharer under the law of pre-emption has the right to substitute himself in place of a stranger in respect of a portion of the property purchased by him and such a right of pre-emption may be characterized as archiaic, feudal and outmoded but this was law for nearly two centuries, either based on custom or statutory law. It is in this background the right of preemption under statutory law has been held to be mandatory and not mere discretionary. If a person, who is a co-sharer in the joint land, establishes that on the date of the sale, on the date of filing of the suit and on the date of decree he was a co-sharer in the joint land from where a stranger to the joint khewat has purchased some portion of the land, his suit for pre-emption is to be decreed. This statutory right has been held to be mandatory and non-discretion lies with the court to dismiss his suit by granting any other relief to the plaintiff as in the suit for specific performance.
14. In view of the aforesaid legal position, if the facts of the present case are examined, then it is clear that both the courts below have rightly held that the plaintiff was a co-sharer in the joint khewat on the date of sale. Undisputedly, the defendant-appellants had purchased a share from the joint khewat being Nos. 41, 42 and 111 comprising 203 kanals 9 marlas of land from three different vendors by three sale deeds. Though a contention was raised that they have purchased and taken possession of the specific khasra numbers of the land from the joint khewat, but the said plea is contrary to the averments made in the sale deeds itself, copies of which are on the record as Ex. D1 to Ex.D4. Even otherwise, this plea cannot be accepted because the sale of a specific khasra number by a co-sharer always amounts to sale of the share in the joint khewat as has been so held by the Full Bench of this Court in Bhartu's case (supra). The plaintiff has placed on record the copies of jamabandis for the year 1984-85 as Ex.P3 to Ex.P5 pertaining to the three khewats i.e. Khewat Nos. 41, 42 and 111. According to those jamabandis, all the three khewats from which the defendants had purchased the land vide three sale deeds were recorded as joint land between different co-sharers. Further, a bare perusal of the copy of mutation (Ex.P2) reveals that the plaintiff has inherited the share in the suit land from her husband Khiali Ram, who was recorded as one of the co-sharer in the said khewat. Undisputedly, the plaintiff inherited the share of Khiali Ram after his death, and the mutation was sanctioned in her favour. The defendant-appellants have not disputed this fact. They have taken the plea in the written statement that the plaintiff has inherited the share in the suit land from Khiali Ram, who was the brother of father of the vendors, therefore, the plaintiff has no right of pre-emption on the basis of co-sharership. There is no such law which deprives the plaintiff from pre-empting the sale on the basis of co-sharership on the ground that she has inherited the property from her husband and the vendors are brothers of her husband. Therefore, I do not find much force in the argument of the learned Counsel for the defendants that the plaintiff has not placed on record the revenue records showing her to be a co-sharer in the joint khewat or his contention that the revenue record produced by the plaintiff are not the documents of title. In the instant case, the plaintiff had categorically stated in the plaint that she was the co-sharer in the joint khewat and to the same effect a statement was made by her son in the court, who was her general power of attorney, when he appeared as a witness in the witness box. No suggestion was put to him that the plaintiff is not the co-sharer in the joint khewat or she has not inherited the land from her husband Khiali Ram. Rather it is admitted case of the defendants that Khiali Ram was a co-sharer and the plaintiff has inherited her share after his death. The mutation of inheritance was sanctioned in her favour vide mutation Ex.P2. In the said mutation she has been shown to be a co-sharer in the joint khewat. In view of these documentary evidence on the record, I do not find any force in the contention raised by the learned Counsel for the appellants that as the plaintiff herself did not appear in the witness box to say that she was the co-sharer in the joint khewat, therefore, adverse inference should be drawn against her. In my opinion, the plaintiff, who is a Pardanashin lady, appointed her son as general power of attorney to make the statement in the court and who had categorically deposed that his mother was a co-sharer in the joint khewat on the date of sale, on the date of filing of the suit and on the date of the decree and she became co-sharer in the joint khewat after the death of his father Khiali Ram as she inherited his property.
15. In view of the above, I do not find any illegality or perversity in the judgments and decree passed by both the courts below. No substantial question of law is involved in this appeal.
Hence, all the three appeals are dismissed with no order as to costs.