Dharambir and Another vs Bhagat Ram and Others

A.S. Nehra, J.—This appeal is directed against the judgment and decree passed by the Additional District Judge, Rohtak, on 22-4-1991 by which the appeal of the defendants-appellants was dismissed and the judgment and decree passed by the trial court on 4-3-1988 (decreeing the suit of the plaintiffs-respondents) was upheld.

Briefly stated, the facts of the case are that the plaintiffs-respondents filed the suit for possession of the suit land by way of pre-emption on the ground that Rati Ram and Suresh Kumar were owners/co sharers to the extent of one-half share in the suit land comprising in Khewat No. 293, Khatauni No. 529, Khasra Nos. 48/18/2(1-11), 19/2(1-11). 21(7-11), 22(7-11), 47/25(2-14), 48/23(7-11) and 24/1(3-19), total measuring 32 Kanals 8 Marias, while the plaintiffs-respondents were owners/co-sharers of the remaining one-half share and that Rati Ram and Suresh Kumar sold away their one half share in favour of Dharambir and Rajbir vendees-defendants appellants for an ostensible consideration of Rs. 25 000/- vide sale deed dated 30-3-87. The plaintiffs-respondents, thus claiming themselves to be the co-sharers in the suit land, filed the instant suit for pre-empting the sale, They also contended that the sale, in fact, took place for Rs. 20,000/- while an amount of Rs. 5,000/- more was got mentioned in the sale-deed fictitiously in order to defeat the right of the pre-emptors. It was also alleged by the plaintiffs-respondents that even the market value of the land was not more than Rs. 20,000/- at the time of sale.

The defendants-appellants contested the suit on the ground that the vendees-defendants appellants were already co-sharers in the Khewat, in dispute, because they had purchased the land measuring 12 Kanals 9 Marias in the same Khewat, vide sale-deed dated 20-8-1985 and as such, the plaintiffs-respondents have no superior right to preempt the sale. The vendees defendants appellants also took the plea that they are tenants over the suit land for the last about 20 years and as such no suit for pre-emption can be filed to pre-empt the sale and that, therefore, the suit of the plaintiffs-respondents is liable to be dismissed.

On the pleadings of the parties, the following issues were framed :-

Whether plaintiffs have superior right to pre-empt the sale, in question ?

Whether sale-price was pa d actually or fixed in good faith ?

If issue No. 2 is not proved, what was the market value of the land, in question ?

Whether plaintiffs have no locus standi to file the present suit ?

5 Whether suit of the plaintiffs is not maintainable in the present form ?

Whether defendants arc entitled to any compensation by way of improvement ? If so, to what amount ?

Relief.

The trial Court decreed the suit of the plaintiffs-respondents on 4-3-1989.

I have heard the learned counsel for the parties and have gone through the evidence on the record. There is no doubt or dispute that the plaintiffs-respondents were co-sharers of one-half share in the suit land, while Rati Ram and Suresh Kumar, vendors, were co-sharers of the remaining one-half share. In jamabandi for the year 1986-87 (Exhibit PX) Rati Ram Suresh Kumar (sons of Chander son of Amin Lal) have been shown as co-sharers of one-half share in the land comprising in Khewat No. 366, Khatauni No. 383, Khasra Nos. 47/25, 48/18/2, 19/2, 21, 22, 23 and 24/1 while Kalia son of Bhatu is having one-half share in the aforesaid land. The suit was filed by Kalia co-sharer but, during the pendency of the suit; Kalia died and Bhagat Ram and others were brought on the record as his legal representatives and heirs. The share of Kalia to the extent of one-half was mutated in favour of the present plaintiffs-respondents vide Mutation No. 759 dated 20-3-1988. So, the plaintiffs-respondents are the co-sharers in the suit land to the extent of one-half share, while the vendors were the co-sharers of the remaining one-half share.

The learned counsel for the appellants has contended that the appellants were also co-sharers in the suit land, because they had also purchased the land measuring 12 Kanals 9 Marias out of the same joint Khewat, vide sale-deed dated 20-8-1985 and therefore, they had become co-sharers in the Khewat and the plaintiffs-respondents, who have also claimed as co-sharers, have no superior right to pre-empt the sale in their favour. There is no dispute about the purchase dated 20-8-1985 in respect of the sale in their favour. There is no dispute about the purchase dated 20-8-1985 in respect of the land, land measuring 12 Kanals 9 Marias, but that purchase was of specific Khasra numbers, Daulat Ram son of Maha Singh was the owner of land measuring 12 Kanals 9 Marlas comprising in Khasra Nos. 48/14/2(3-11), 17(8-0) and 24/2(0-18). So, the appellants purchased specific portion of land comprising in three specific Khasra numbers. Though the land purchased by the appellants earlier was part of Rectangle No. 48, out of which the sale, in dispute, had been effected, yet, on account of the sale of specific area and specific Khasra numbers, they had not become co-sharers either in the Rectangle or in the Khewat, Daulat Ram was not a co-sharer in the Khewat He was the owner of specific area comprising in specific Khasra numbers and he sold the same. In case Daulat Ram had been a co-sharer, the sale of land effected by him in specific Khasra numbers could be taken as a sale of share, but Daulat Ram was not a co-sharer in the Khewat and the sale of specific Khasra numbers, made by such a person, is a sale of specific portion and not a sale of share.

It was contended by the learned counsel for the appellants that the State Government was owner of certain parcel of land, including the suit land, and, out of that land, some parcels of land were allotted to different persons in specific areas/specific Khasra numbers. Kalia, father of the plaintiffs-respondents Nos. 1 to 4, was a tenant under the Government to the extent of one-half share and the vendors were sub tenants under Kalia over the remaining suit land, as is evident from jamabandi Exhibit P-2. The Government then allotted/sold away the entire suit land in favour of Kalia and his subtenants in equal shares. So, Kalia and the present vendors became co-sharers, while the other persons, including the vendees- defendants-appellants, who were allotted separate land in specific area/Khasra numbers, could not become co-sharers with any other allottee. There was no question of any partition or acquiring right in the land of any other Khasra number of the Khewat. No other allottee had any concern with their land. The learned counsel for the appellants has placed reliance on the law laid down in Bhartu v. Ram Sarup 1981 P. L. J. 204. wherein it was held that the right of Pre-emption Act, 1913, includes in its ambit any sale out of the joint holding, by a co-sharer, irrespective of the fact whether the land sold is fractional share or specific portion comprised of particular Khasra numbers and the right of pre-emption cannot be defeated simply by describing the land purchased in terms of specific Khasra numbers instead of fractional share. As already mentioned, the aforesaid law becomes applicable only when the sale is made by a co-sharer. But, in the present case, Daulat Ram was not a co-sharer in that Khewat. He was owner of a specific area out of Rectangle No. 48 and he sold that area to Dharambir and Rajbir on 20-8-1985. Earlier, he or his predecessor in-interest was allotted that area by the State Government. In the case Geeta Devi v. Banwari Lal (1970) 72 P. L. R. 446. where separate land with separate Khasra numbers had been allotted to various persons and later on, they had been given separate "Sanads" regarding the land that had been allotted to them it was held that simply because various portions of land, which had been allotted to two different persons, were in one Khewat, it did not mean that they were co-sharers in the land.

In view of the above-mentioned discussion, there is no merit in this appeal and, therefore, the same is dismissed.