Punjab-Haryana High Court
(O&M;) Zora Singh vs Laxmi Narain And Ors on 15 September, 2014
Author: Rekha Mittal
Bench: Rekha Mittal
R.S.A. No.840 of 1988 -1-
In the High Court of Punjab and Haryana at Chandigarh
R.S.A. No.840 of 1988
Date of Decision: 15.9.2014
Zora Singh
---Appellant
versus
Laxmi Narain and others
---Respondents
Coram: Hon'ble Mrs. Justice Rekha Mittal
Present: Mr.R.A.Sheoran, Advocate
for the appellant
Mr. Keshav Partap Singh, Advocate
for Mr. Raj Mohan Singh, Advocate
for the respondents
***
1. Whether Reporters of local papers may be allowed to see the
judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
***
REKHA MITTAL, J.
The present regular second appeal has been directed against the judgments and decrees passed by the courts below whereby the suit filed by Laxmi Narain and others (respondents) for possession through pre-emption has been decreed.
Laxmi Narain and others, plaintiffs-respondents filed suit for possession through pre-emption of land measuring 38 Kanals 12 Marlas on the premise that Lakhmi Ram son of Jot Ram sold the suit land in favour of defendant No. 1 through registered sale deed dated 12.10.1983 along with R.S.A. No.840 of 1988 -2- all rights pertaining thereto for a consideration of Rs. 15,000/- without any notice to the plaintiffs. As the plaintiffs are the co-sharers in the joint khewat, they have a superior right of pre-emption as against the defendant.
The defendant filed the written statement and raised the plea that sale took place for consideration of Rs. 22,000/- out of which Rs. 7,000/- were paid at the time of agreement dated 11.10.1983 and the remaining amount before the Sub Registrar at the time of sale. In case the suit is decreed in favour of the plaintiffs, he is entitled to stamps and registration expenses and also Rs. 15,000/- for an improvement which he made after purchase of the suit land. He also raised certain objections with regard to cause of action, maintainability and locus standi of the plaintiffs to file the suit.
The controversy between the parties led to framing of following issues by the learned trial court:-
1. Whether the plaintiffs have superior right of pre-emption?
2. Whether the sale consideration of Rs. 22,000/- was fixed and paid in good faith? OPD
3. If issue No. 2 is not proved, then what was the market value of the suit land prevalent in the locality at the time of sale?
OPP
4. Whether the defendant paid stamps and registration charges, if so, to what amount and to what effect? OPD
5. Whether the suit is not maintainable in the present form?
6. Whether the plaintiffs have no locus standi to file the present suit?OPD R.S.A. No.840 of 1988 -3-
7. Whether the plaintiffs have waived their right to pre-empt the land? OPD
8. Whether the defendants spent Rs. 15,000/- for improvement of the land, if so, to what effect? OPD
9. Relief.
The parties were permitted to lead evidence in support of their respective claims. After having heard counsel for the parties and bestowing its consideration to the pleadings and evidence adduced in the light of disputed questions of fact and law, the learned trial court returned its findings on Issue Nos. 1 and 5 in favour of the plaintiffs while Issue Nos. 2 and 4 were decided in favour of the defendant and as a result suit of the plaintiffs was decreed with costs on payment of Rs. 22,000/- as sale consideration, Rs. 3051-20P as stamps and registration expenses making it total amount of Rs. 25051-20P less the amount already deposited by the plaintiffs. The plaintiffs were further directed to deposit this amount within 30 days from the date of judgment and decree failing which the suit shall stand dismissed with costs.
The matter was carried in appeal by the defendant-appellant but it did not find favour with the District Judge, Bhiwani, therefore, the findings recorded by the learned trial court were affirmed.
Feeling dissatisfied by the verdicts of the courts below, the present regular second appeal has been preferred by the defendant- appellant.
It is common case of the parties that Lakhmi Ram son of Jot Ram was a co-sharer in Khewat No. 45 Khatauni No. 46 total 74 Kanals 16 R.S.A. No.840 of 1988 -4- Marlas in which the plaintiffs-respondents were also co-sharers at the time when said Lakhmi Ram sold the suit land in favour of defendant-appellant vide registered sale deed dated 12.10.1983. As the plaintiffs-respondents were co-sharers with the vendor of defendant-appellant, they claimed their preferential/superior right of pre-emption as against the defendant which has been granted in their favour by the courts below.
There cannot be any dispute about the settled position of law that in order to claim preferential right, the pre-emptor has to maintain that right not only at the date of the suit or during course of litigation but also at the date of trial court's decree. In this context, reference can be made to the Full Bench judgment of this court in Ramji Lal and another vs. The State of Punjab and others, 1966 Current Law Journal 276. There is no denial that at the time of filing of the suit by the plaintiffs, the plaintiffs and the defendant who stepped into the shoes of Lakhmi Ram, continued to be co- sharer in the suit land.
Counsel for the parties have made their submissions on the following substantial question of law:
"Whether the plaintiffs continued to be co-sharers in the joint khewat (suit land) till the passing of decree by the trial court on 25.7.1987?"
Counsel for the appellant has contended that the courts below committed a grave error in holding that order dated 20.10.1986 Ex. D3 passed in partition proceedings did not operate to sever co-ownership of the plaintiffs in the suit land. It is argued with vehemence that in the partition proceedings initiated on 15.5.1986 by the defendant-appellant in which the R.S.A. No.840 of 1988 -5- plaintiffs-respondents were arrayed as respondents, the Assistant Collector 2nd Grade, Dadri passed order dated 20.10.1986 affirming naqsha 'kh' and further ordered that the file be put up again on 20.11.1986 along with naqsha 'ga' and on expiry of period of limitation for filing appeal, the document of partition i.e. Sanad taksim be issued. It is further argued the naqsha 'kh' representing the proposed mode of partition was approved by the competent authority after spot inspection and therefore, the status of the plaintiffs as co-sharers in khewat No. 45 khatauni Nos. 46 and 47 ceased to exist on 20.10.1986, prior to the date decree was passed by the learned trial court on 25.7.1987. It is argued that the courts below are completely misled by placing reliance upon judgment of the Himachal Pradesh High Court in Sri Khem Dutt and others vs. Palkia and another 1982 PLJ 391 in holding that until instrument of partition is prepared and possession of the land is delivered to the parties, status of the plaintiffs as co-sharers in the suit land did not get extinguished, giving them preferential right of pre-emption. In support of his contention, he has relied upon Division Bench Judgment of this Court in Har Devi vs. Ram Jas and others 1974 PLJ 345, Single Bench judgment of this Court in Lala Ram vs. Financial Commissioner, Haryana 1992 PLJ 45.
Counsel for the respondents, on the contrary, contends that against order dated 20.10.1986, the plaintiffs-respondents preferred an appeal and the appeal was decided by the authority concerned after the decision by the trial court on 25.7.1987. It is further argued that final order of partition was made during pendency of appeal which is of no consequence to affect right of pre-emptors. For this purpose, he has cited R.S.A. No.840 of 1988 -6- Jagdish Singh and others vs. Dalip Singh and another, 1982 PLJ 461, Lakhwinder Singh and others vs. Balvinder Singh and others 1987 PLJ
505. He has further argued that since the instrument of partition indicating the date from which partition was to take effect was prepared subsequent to the decision of the trial court, there is no merit in the contention of the appellant that the plaintiffs lost their status as co-sharers in the land by order dated 20.10.1986 Ex. D3.
I have heard counsel for the parties and perused the records. The crucial question for adjudication is, what is the effect of order Ex. D3 on the status of the plaintiffs/respondents being co-sharers in the suit land.
Before proceeding to address arguments advanced by counsel for the parties, it is appropriate to refer to order dated 20.10.1986 Ex. D3 and its translation reads as follows:-
"The file of partition was put up. Case called. The file has been properly examined. Spot has been inspected. naqsha 'kh' is being confirmed. File be put up on 20.11.1986 along with naqsha 'ga'. After expiry of period for filing appeal, Sanad taksim be issued. Docket be issued to Partwari halqa."
Firstly, there is no evidence on record that an appeal was preferred by the plaintiffs against order dated 20.10.1986 much less the appeal being preferred within the stipulated period of limitation or it being accepted or order dated 20.10.1986 having been modified or reversed. If the plaintiffs had actually filed an appeal but failed, it has no adverse affect on order dated 20.10.1986.
R.S.A. No.840 of 1988 -7-
A similar issue came up for consideration before the Division Bench of this Court in Har Devi's case (supra) . In the said case, Har Devi filed a suit to pre-empt sale of land by Hari Singh and Jagir Singh to Ram Jas and others (respondents). Partition proceedings were initiated by Hari Singh on 21.10.1956. Later, Ram Jas and others took proceedings for partition of the land in which Smt. Har Devi and Kako were parties. In those proceedings, order was passed on 21.5.1968 and its translation quoted in the judgment reads as follows:-
"Counsel for the parties present. Demarcation has been effected on the spot. Partition has been effected according to the plan. Now, naqsha jeem be obtained for 4.6.1968."
In this case on 17.6.1968, order Ex. D12 was passed that period of limitation for filing of appeal against order dated 21.5.1968 had expired and therefore, instrument of partition is prepared and will take effect from Rabi 1968. However, the trial court decree was passed on 31.7.1968 in favour of the plaintiffs/preemptors, affirmed in first appeal. In the second appeal before this court, learned Single Judge took the view that relationship as co-sharers had come to an end before the decree was passed and therefore, the suit for pre-emption could not be decreed. Counsel for the appellant contended in view of Section 118 of the Punjab Land Revenue Act that no further proceedings could be taken in pursuance of order of 21.5.1968 because that order had been appealed against. According to him, the instrument of partition Ex. D-12 could not be prepared. The Division Bench of this court held, quoted hereinbelow:-
"It is not necessary for us to go into this matter because we are R.S.A. No.840 of 1988 -8- of the opinion that the order dated 21.5.1968 put an end to the joint relationship. That order was appealed against and that appeal failed; or to put it more accurately, was not pressed. Therefore, the order dated 21.5.1968 remained alive and whatever has happened in pursuance of it cannot be just wiped out."
The learned Judges even refused to accept the plea of the appellant that order dated 21.5.1968 would merge with the order of the appellate court dismissing the appeal. Keeping in view the observations made in Har Devi's case (supra), I find merit in the contention of appellant that with passing of order dated 20.10.1986 Ex. D3, the plaintiffs- respondents lost their status as co-sharers in the suit land, therefore, as they were under an obligation to continue their piratical right of pre-emption till passing of the decree by the trial court, their claim for possession through pre-emption could not be held subsisting on the date the decree was passed by the trial court.
The courts below have grossly erred by relying upon judgment of the Himachal Pradesh High Court in Sri Khem Dutt and others' case (supra) and did not bother to examine the judgment in Har Devi's case (supra) decided by this Court and referred to in Sri Khem Dutt and others' case (supra).
In the partition proceedings, after approval of naqsha 'kh' i.e, the proposed mode of partition, naqsha 'ga' and instrument of partition were ordered to be prepared in order to give effect to naqsha 'kh'. It can be safely held that approval of naqsha 'kh' is just like passing of preliminary R.S.A. No.840 of 1988 -9- decree in partition proceedings by the civil court which is carried into effect by the final decree whereby the suit land is partitioned by meets and bounds reflecting the area/property allotted to each share holder on the basis of rights determined in the preliminary decree. As has been noticed hereinbefore, there is nothing on record to suggest that any appeal was preferred by the plaintiffs-respondents against order dated 20.10.1986 and in these circumstances, the plaintiffs-respondents were otherwise not entitled to file an appeal against the instrument of partition prepared on the finalization of the mode of partition. In this context, reference can be made to the judgment of this court in Lala Ram's case (supra).
Counsel for the respondents has contended that partition order passed by the revenue authorities during pendency of appeal cannot affect pre-emption right. There cannot be any dispute that if the plaintiffs claiming superior pre-emption right loses his status as co-sharer after passing of decree by the trial court or to say during pendency of appeal, it will not enure to the benefit of the defendant as has been held in Jagdish and others' case (supra) and Lakhwinder Singh and others' case (supra).
Keeping in view the ratio of the judgment in Har Devi's case (supra), the respondents cannot gain any advantage to their contention from the decision rendered by the Himachal Pradesh High Court.
In view of the above, it can be safely concluded that right of pre-emption, a piratical right can be defeated by the contesting party by legal means and in order to claim relief by the plaintiffs, the said right must be kept alive till decree is passed by the trial court. As in the circumstances of the present case, the respondents-plaintiffs lost their status as co-sharers R.S.A. No.840 of 1988 -10- on confirmation of proposed mode of partition i.e. Naasha 'kh' on 20.10.1986, much before passing of the decree by the trial court in May 1987, the plaintiffs-respondents failed to keep their right of pre-emption alive till passing of the decree by the trial court and therefore, the suit for pre-emption could not be decreed.
For the reasons aforesaid, the appeal is allowed, the judgment and decrees passed by the courts below are set aside and the suit filed by the plaintiffs is dismissed with costs throughout. However, any amount deposited by the plaintiffs in compliance with the decree passed by the trial court shall be refunded to them in accordance with law.
(REKHA MITTAL) JUDGE 15.9.2014 PARAMJIT