Akbar vs Shamma

Jaswant Singh, J.—This is a Defendant's appeal and arises out of a suit for preemption in respect of 30 Kanals and 9 Marlas of land entered

in Khewat No. 129 of village Dole, Tehsil Kishtwar, brought by the Plaintiff in the Court of the Sub Judge, Kishtwar.

The Plaintiff, alleged in his petition of plaint that Khewat No. 129 measuring 57 Kanals and 17 Marlas was the joint property of Deba Ram

Defendant No. 2 and Bhagat Ram, that he became a co-sharer in Khewat No. 129 by purchase of 26 Kanals and 12 Marlas of land comprised in

Khasra No. 697 (which is a part of Khewat No. 129) from Bhagat Ram, co-sharer of the said Khewat vide deed dated 22nd May, 1958, that

Deba Ram Defendant had by means of sale deed dated 21/23-8-1967 registered on 24-9-1967 sold 30 Kanals and 9 Marlas out of the joint

khewat in favour of Akbar Defendant No. 1 and that he being a co-sharer In Khewat No. 129 his right to purchase the suit-land was superior to

that of Akbar Defendant. The Plaintiff further alleged that the sale consideration of Rs. 1,000/- entered in the sale deed was fictitious and that the

same had not been paid in full nor fixed in good faith.

The suit was resisted by the contesting Defendant inter alia on the ground that he had purchased the land comprised in Khasra Nos. 699 and

Min measuring 30 Kanals and 9 Marlas entered in Khewat No. 129 from Defendant No. 2 and that the Plaintiff having purchased only a

specific plot out of the said Khewat could not be deemed to be a co-sharer in the suit land. He further pleaded that the sale consideration entered

in the sale deed which also represented the true market value of the suit property had been paid in full by him to the vendor.

The Learned Subordinate Judge, Kishtwar, who tried the suit dismissed it holding that the Plaintiff was not a co- sharer. On appeal the learned

District Judge, Badarwah, agreed with the contention of the Plaintiff that he was a co-sharer and as such had a preferential right to purchase the

suit land and thus decreed the suit, on payment of Rs. 613/- which according to him was the amount proved to have been actually paid to the

vendor.

Mr. I.K. Kotwal appearing in support of the appeal has contended before me that the learned District Judge has erred in holding that the

Plaintiff was a co-sharer in the suit land. Elaborating his submissions he has urged that the Plaintiff having purchased only a specific plot out of

Khewat No. 129 could not be clothed with the status of a co-sharer in the Khewat. The learned Counsel has also urged that in case his contention

does not prevail and the suit is decreed in favour of the Plaintiff, the sale consideration of Rs. 1,000/- should be ordered to be paid to his client as

it was actually paid and fixed in good faith.

Mr. S.P. Gupta, the learned Counsel for the Respondent, has on the other hand urged that even though the Plaintiff purchased the land

comprised in specific Khasra No. , Khewat No. 129 was the undivided and joint property of the vendor of the Plaintiff and of Deba Ram and that

the Plaintiff became a co-sharer in the Khewat by virtue of the purchase made by him and as such was entitled to pre-empt the suit property. Mr.

Gupta has further contended that in case his contention finds favour with the Court, the decree in favour of his client should be passed on payment

of Rs. 613/- only as the rest of the amount has not been proved to have been actually paid by Defendant No. 1 to Defendant No. 2.

The principal question that falls for determination in this appeal is whether the Plaintiff is a co-sharer in the suit land and as such has a superior

right as against Defendant-vendee in terms of clause fourthly of Section 14(b) of the Right to Prior Purchase Act 1993 (1936 A. D.). The term co-

sharer has not been defined in the aforesaid Act and its meaning has to be gathered from decided cases. In AIR 1926 Cal 338 it has been

observed:

A person who has got an undivided share in the holding as well as a person who has become interested in a particular area of the holding is a co-

sharer.

Again in AIR 1947 Lah 184, it was hold:

The word ""co-sharers"" signifies persons owning a share or shares in the whole of the property or properties of which another share or other shares

were the subject of sale. In other words, the word ""co-sharer"" denotes a person who holds an existing joint proprietary interest whether absolute

or limited in an undivided property.

From a perusal of the record particularly of the Jamabandi Ex. PXI for the year 1958 and the statement of Ghulam Hussein Patwari it appears that

Bhagat Ram and Deba Ram were co-sharers in Khewat No. 129. Mohamadoo Defendant's own witness has stated that the original owners of the

land in dispute were Bhagat Ram and Deba Ram, that their shares were equal and Bhagat Ram had sold his half share in favour of the Plaintiff and

that Deba Ram sold his share in favour of Defendant No. 1 and that the Plaintiff had become the owner of one half and the Defendant No. 1 had

become the owner of the other half. Even Deba Ram who has appeared as a witness for Defendant No. 1 does not clearly say that any partition

had taken place between him and Bhagat Ram. It may be that the co-sharers occupied different khasra Nos. for the sake of convenience but that

alone does not establish that any partition took place between them. As no partition is proved to have taken place between the aforementioned co-

sharers the khewat continued to be their Joint property.

The principle is well established in a voluminous cursus curiae that purchaser from a co-owner or co-tenant steps into the shoes of his transferor

and is clothed with all the rights and become subject to all the liabilities of his transferor. The interest that the transferee purchases is the interest of

the transferor. In short when the transferee takes the assignment he becomes as much a co-owner as his transferor was before the transfer (See

AIR 1917 Nag 45, AIR 1930 Oudh 475 and Chenganakattil Moideen and Others Vs. Pottengal Kunhalikutti and Others, .

It is also well settled that each joint or common owner of an estate is to be regarded as Having a joint or common proprietary right in the whole

estate and that the common right operates to prevent any co-owner from setting up a claim to any parcel of the common property as his exclusive

property during the period of common ownership. It would be advantageous to refer in this connection to the following observations of their

Lordships of the Privy Council made in the decision reported in AIR 1924 144 (Privy Council) :

Where lands in India are held in common by co-sharers each co-sharer is entitled to cultivate in his own interests in a proper and husband like

manner any part of the lands which is not being cultivated by another of his co-sharers

Such an exclusive use of the lands held in common by a co-sharer is not an ouster of his co-sharers from their proprietary rights as co-sharers in

the lands.

To the same effect are the observations made in the ruling reported in AIR 1935 Lah 651.

It would be also beneficial at this stage to refer to the following observations made in another decision reported in AIR 1950 Pepsu 5:

If a co-sharer is in exclusive possession of any portion of an undivided holding not exceeding his own share he cannot be disturbed in his

possession until partition. If instead of remaining himself in possession, he transfers this portion of the joint Khata, his transferee will also have the

same rights and cannot be dispossessed by the other co-sharers until a final partition between the co-sharers has taken place. In such a case, the

other co-sharers are only entitled to a declaration that the possession of the transferee will be that of a co-sharer subject to adjustment at the time

of partition.

The view expressed by the Pepsu High Court also receives support from a DB ruling of the Lahore High Court report- in AIR 1940 Lah 473. In

the present case there being no proof on the record that there has been any binding partition between the co-owners namely Bhagat Ram on the

one side and Deba Ram on the other, the position that emerges ii the light of the aforesaid authorities is that the Plaintiff Shama became by

purchase of 26 Kanals and 12 Marlas of land, vide sale deed dated 22-5-1958, a co-owner with Deba Ram and on sale by the latter of Khasra

No. 699 (22 Kanals and 4 Marlas) and Khasra No. 701 (8 Kanals and 5 Marlas) aggregating 30 Kanals and 9 Marlas entitled to pre-empt the

property under clause fourthly of Section 14 (b) of the Right of Prior Purchase Act.

The other question that arises for decision in this case is whether Akbar Appellant is entitled to the consideration of Rs. 1000/- entered in the

sale deed dated 2l/23rd August, 1963. According to the sale deed, the sale was effected for a consideration of Rs. 1000/-. The sale deed further

recites that Rs. 390/- have been paid already to the vendor and Rs. 610/- would be received by him before the Sub-Registrar. The endorsement,

however, made by the Sub-Registrar at the time of the registration of the sale deed shows that the sale was effected for Rs. 1013/- out of which

Rs. 400/- had already been received by the vendor and Rs. 613/- were paid before him. Apart from the fact that there is obvious inconsistency

between the recitals in the sale deed and the recitals in the endorsement of the Sub Registrar, there is also an inconsistency between the recitals in

the sale deed and the statement of Deba Ram Defendant No. 2. In the course of his deposition, Deba Ram has stated that Rs. 400/- had been

received by him anterior to the registration of the sale deed and Rs. 613/- were received by him at the time of the registration of the deed. Deba

Ram has also admitted that no receipt was executed by him in respect of Rs. 400/- received by him earlier from Akbar Defendant-Appellant. He

has further stated that he could not. say as to who were the persons who were present at the time he received the aforesaid earnest money of Rs.

400/-. Thus the evidence produced by the Appellant is not' enough to hold that the full amount of Rs. 1000/- for which the sale purports to have

been made in favour of the Appellant, was received by Deba Ram.

The findings of the lower appellate Court on both the points namely the right of the Plaintiff to pre-empt the suit property and the amount to be

paid by him are justified by the material on the record.

For the foregoing reasons, there is no force in this appeal which Is dismissed but in the circumstances of the case without any order as to costs.

Just after hearing the judgment, the learned Counsel for the Appellant made a prayer for grant of certificate of fitness for leave to file the Letters

Patent appeal. In view of the fact that the point involved in the appeal is of considerable public importance and is likely to arise in a number of

cases, I declare the case to be fit one for appeal under the Letters Patent.