Bal Ram vs Sarbati

Vinod K.Sharma, J.

1 C.M. is allowed, the order dated 5.2.2010 is recalled and the appeal is restored to its original number. RSA No. 203 of 1985 This judgment shall dispose of two regular second appeals i.e. RSA Nos. 203 & 204 of 1985 titled Bal Ram v. Smt. Sarbati and Bal Ram v. Gopal & others respectively, as the common questions of law and facts are involved.

2 For the sake of brevity facts are being taken from RSA No. 203 of 1985 titled Bal Ram v. Smt. Sarbati.

3 The plaintiff/appellant by way of this regular second appeal challenged the judgment and decree passed by the learned Courts below, vide which the suit filed by the plaintiff for possession of the land by way of preemption, stands dismissed.

4 The plaintiff/appellant filed a suit to preempt the sale made by his brother Phussa Ram in favour of the defendant/respondent by claiming himself to be related to the vendor, and being cosharer.

5 The learned Courts below, dismissed the suit filed by the plaintiff/appellant, for the reason, that the vendee being a lady, the sale could not be preempted.

6 The learned counsel for the appellant contends, that this appeal raises the following substantial questions of law for consideration by this Court :

Whether the learned Courts below were justified in dismissing the suit filed by the plaintiff/appellant by treating the vendee to be a lady, though, there were other vendees also ?

Whether the plaintiff/appellant had right of preemption ?

Partial preemption is not permissible, therefore, once it was found, that one of the vendee was a lady, it was not permissible for the plaintiff/appellant to preempt, the share of the other vendees, as it would have resulted in partial preemption. Even otherwise, once the stand taken by the plaintiff/appellant was, that he was closely related to the vendor Phussa Ram, and claimed the right of preemption being cosharer, he was not entitled to preempt the sale, in view of the law laid down by the Hon''ble Supreme Court in the case of Jagdish and others v. Nathi Mal Kejriwal and Others 1987 R.R.R. 65 : 1987 P.L.J. 14, wherein the Hon''ble Supreme Court has been pleased to lay down as under:

"3. It is argued by the learned counsel for the petitioners that since the suit land belonged to the joint family and it had not been sold by all the cosharers they were entitled to claim the right of preemption under clause ''Fourthly'' of Section 15(l)(b) of the Act because they happened to be the nonalienating cosharers. Although there is no specific finding that the property is the joint property in this case, we shall assume for purposes of this judgment that the suit land was joint property. In order to understand the meaning of the words ''other cosharers'' in Section 15(l)(b) we have to read the Act as it stood before the decision in Atam Prakash''s case (supra). It is seen that the expression ''other cosharers'' in clause ''Fourthly'' of Section l5(l)(b)of the Act refers to only those cosharers who do not fall under clause First''or ''Secondly''or ''Thirdly''of Section 15(l)(b) of the Act. Since the petitioners admittedly fall either under Clause First'' or under Clause ''Secondly" of Section 15(l)(b) of the Act they are clearly outside the scope of clause ''Fourthly''. Therefore, the petitioners cannot claim the right of preemption under clause ''Fourthly''. We do not, therefore, find any substance in this contention which was used for the first time before the High Court. The suit was, therefore, rightly dismissed by the High Court holding that the petitioners were no longer entitled to any relief under the Act. This petition, therefore, fails and it is dismissed."

7 In view of the settled law, the substantial questions of law raised, are answered against the appellant. Finding no merit, appeal is ordered to be dismissed, but with no order as to costs. Appeal dismissed