Lal Chand vs Lekh Ram & Anrs on 12 February, 2018

RSA No.967 of 1991 Lal Chand ... Appellant Vs. Kalawati Devi and another ... Respondents CORAM: HON'BLE MR. JUSTICE AMIT RAWAL Present:- Mr. Ranjit Saini, Advocate for the appellant.

Mr. Umesh Aggarwal, Advocate for the respondent.

AMIT RAWAL J.

This order of mine shall dispose of two Regular Second Appeals bearing Nos.968 and 967 of 1991.

The present appeal is directed against the judgments and decrees of both the Courts below, whereby, suit for possession by way of pre-emption on behalf of the appellant-plaintiff being co-sharer, has been dismissed.

It would be apt to give preface of the matter for adjudication of the lis.





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RSA No.968 of 1991                                                 {2}

The appellant-plaintiff/Lal Chand instituted a suit for possession by way of pre-emption of the land in dispute on the premise that defendant no.1, who used to be owner in possession of land measuring 26 kanals 17 marlas as described in para 1 of the plaint situated in village Biharipur, sold it to defendant no.2-Ram Chander, vide registered sale deed dated 3.9.1985 for a consideration of `49,000/-. Since the plaintiff being co- sharer had a preferential right, instituted the suit aforementioned on 25.08.1986. Defendant no.1/vendor was given up. Defendant no.2 contested the suit by filing a written statement took various objections qua non- maintainability, cause of action and time barred but did not deny the execution of the sale deed. The replication was filed.

6. Whether the suit is bad for partial pre-emption? OPD

7. Relief."

In order to prove his case, the plaintiff examined following witnesses:-

2 of 13 RSA No.968 of 1991 {3} PW1 - Shish Ram PW2 - Kishan Singh Reader to Tehsildar PW3 - R.C.Yadav, Advocate PW4 - plaintiff himself.

Defendants examined the following witnesses:-





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RSA No.968 of 1991                                               {4}

He further submitted that the Lower Appellate Court exceeded jurisdiction in observing that appellant cannot be held to be co-sharer in the land in dispute on the premise that appellant had purchased ½ share of khewat no.92 measuring 1 kanal 0 marla and other ½ share of khasra no.92 by respondent no.1. The said killa was the part and parcel of khewat no.36 and in the absence of any partition or family arrangement between the parties, the appellant had to be treated as a co-sharer in the entire khewat. In other words, he submitted that appellant-plaintiff and defendant no.1, in the absence of any partition, being co-owners, had preferential rights which were available as per the provisions of Sections 6 and 12 of 1913 Act.

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