Babli Devi vs Ram Gopal

A.L. Bahri, J.—The defendants Babli Devi and others challenged this appealjudgment and decrees of the Courts below vide which suit filed by Ram Gopal and others for possession by way of preemption was decreed. The plaintiffs claimed to be cosharers in the suit land and, thus, entitled to preempt the sale which was in favour of defandant Nos. 1 to 6 by defendant No. 7, Ram Lal. The vendor was in possession of the suit land measuring 31 kanals 8 marlas being 627/747 share in the land measuring 37 kanals 7 marlas, as detailed in para 2A of the plaint. He was also owner of 54/86 share in the land measuring 49 kanals 6 marlas, as detailed in para 2B of the plaint. On May 29,1985, he sold the same in favour of Telu Ram and others, defendant Nos. 1 to 6, for Rs. 1,17,262/. According to plaintiffs, in fact the sale consideration was Rs. 88,262/ and the remaining amount, was fictitiously incorporated in the saledeed. The plaintiffs claimed coownership on the basis of mutation No. 2845 dated January 29, 1983.

While resisting the suit defendant Nos. 1 to 6, Telu and others, challenged locus standi of plaintiffs to file the suit inter alia alleging that the partition proceedings were pending and no final partition had taken place, thus, plaintiffs were not cosharers. The defendants further claimed to be in possession of the suit land as tenants under the vendor Ram Lal defendant No. 7 before and at the time of sale deed. Sale consideration was properly affixed. They have made improvements on the suit land by planting trees and in case of decree of the suit, they claimed a sum of Rs. 32,500/ towards improvement apart from expenses of the saledeed.

Several issues were framed on the pleadings aforesaid. Only two issues survived for decision in this appeal, namely issue Nos. 1 and 4, which are reproduced below:.

(1) Whether the plaintiffs have got preferential right to preempt the sale in question ?

(4) Whether the vendeedefendants were tenants of the suit land at the time of its sale, if so, to what effect ?

The trial Court on May 12, 1988, decreed the suit on payment of the amount of saleconsideration mentioned in the saledeed plus a sum of Rs. 15,191.50, the expenses incurred on the sale deed. The lower Appellate Court on November 18,1988 affirmed the judgment and decree of the trial Court by dismissing the appeal filed by the defendants.

Mr. N.K. Jain, Senior Advocate appearing on behalf of the appellants argued that sufficient evidence was produced in this case to show that plaintiffs were not cosharers in the suit land covered by two rectangle numbers 115 and 171 and, therefore, their suit was liable to be dismissed. In the alternative, it has further been argued that the plaintiffs could only be held cosharer qua part of the land covered by rectangle No. 15 and their suit could only be decreed qua those khasra numbers which from part of rectangle No. 115. In support of these contentions reliance has been placed on the decision of Full Bench of this Court in Lachhman Singh Sunder Singh v. Pritam Chand Kirpa Mal, AIR 1970 Punjab and Haryana, 304. While interpreting the scope of Section 15(1)(b) fourthly of the Punjab Preemption Act, it was observed as under

"Where a cosharer sold to the plaintiffs his 1/4th share out of a defined part of the joint land of the cosharers but not out of the whole of their joint land, the sale would not be of a share out of joint land. The plaintiffs would not become cosharers with the other cosharers in the joint land and cannot claim any preferential right of preemption with regard to sale of a part of his share made subsequently by another cosharer."

While following the aforesaid decision of the Full Bench Mr G.R. Majithia, J. in Inder Singh and others v. Om Parkash and others, 1990(1) RRR 32 (P&H) : 1989 PLJ 754 held that a purchaser of a share of a specified field number in specific rectangle only will become a cosharer there and not in the whole joint land. Similar view was taken by Mr. R.N. Mittal, J. in Mahesh Pal and another v. Desh Raj Singh and others, AIR 1983 Punjab and Haryana 435.

The contention of learned counsel for the appellants cannot be accepted for the simple reason that no plea was taken by the defendants in the written statement that the plaintiffs were not the cosharers in the suit land, which was sought to be preemptaned. Rather it was admitted that the plaintiffs were cosharers in the suit land but their status ceased as partition proceedings were pending. No evidence which is beyond pleadings can be looked into. An effort was made by learned counsel for the appellants from the revenue records produced to demonstrate that the plaintiffs were only cosharers in the land covered by one of the two rectangles which was sold and the plaintiffs'' suit entirely could, not be decreed. It is not necessary to refer to such evidence for want of plea in this respect.

Mere pendency of partition proceeding does not cease the status of the joint owners of the suit land. It is only when after the order of partition, plan is prepared (Plan G) when the partition proceedings stand completed. It is from there that the status of the parties being cosharers cease. No order of revenue officer effecting partion was produced on the file. In view the averment made in the written statement impliedly admitting the plaintiffs to be cosharers both the Courts below were right in coming to the conclusion regarding the status of the plaintiffs as cosharers in the suit land.

The other question arising in this case is regarding the status of the defendants over the suit land. They claim to be tenants. The appellants have utterly failed to prove their tenancy over the suit land. The recital in the agreement of sale clearly shows that the defendants were not tenants. The vendor claimed to be in exclusive possession of the suit land and possession was delievered under the saledeed. Further reliance was placed on the judgment and decree of the civil Court regarding this status, which was a consent decree. Both the Courts below rightly ignored the aforesaid decree which was obtained during pendency of the present suit. Since the plaintiffs were not parties in the aforesaid suit, they are not bound by the decision given therein. The contention of learned counsel for the appellants that the aforesaid decree could only be challenged by the parties thereto in view of the Division Bench judgment of this Court in Gurdev Kaur v. Mehar Singh, 1989(2) RCR(Rent) 625 (P&H) : 1989(2) RRR 499 (P&H) : 1989 PLJ 182 is not acceptable in the facts of the case in hand. The Division Bench held that consent decree or a compromise degree can be got set aside on the grounds on which a contract can be set aside. Such a decree does not require registration even if the value of the property sold is mote than Rs. 100/. In the present case, as already stated above, the decree was obtained during pendency of the present suit and is hit by rule of lis pendens.

For the reasons recorded above, I find no merit in this appeal, which is dismissed with costs. The preemption amount be now deposited within two months.