Inder and Others vs Jhamman and Others

G.R. Majithia, J.—This judgment disposes of Regular Second Appeal Nos. 1358 and 1359 of 1990. These are directed against the judgment and decree of the first appellate Court affirming on appeal those of the trial Judge decreeing the suit of the plaintiff- respondents for possession by pre-emption of 1/4th share in the suit land in favour of Jhamman and Likhi, plaintiff-respondents, and 3/4th share of the suit land in favour of Hansa, plaintiff-respondent.

The facts:-

Sarjit alias Surjit son of Smt. Chandri daughter of Nihala, resident of Ballabgarh, was the owner-in-possession of the suit land; that he had entered into an agreement to sell dated September 19, 1979, with Dalu, father of vendee-defendant-appellants (hereinafter the vendees); that Sarjit did not execute the sale deed in terms of the agreement to sell; that Dalu filed a suit for specific performance of agreement to sell dated September 19, 1979 against him being Civil Suit No. 548 of 1980 and arrayed Jhamman and Kikhi (plaintiff-respondents in Civil Suit No. 271 of 24.4.1986) as defendants in that suit since the latter claimed that the vendor had entered into agreement to sell dated August 23, 1979 and pursuant thereto executed sale deed dated November 14, 1979 in their favour for a sale consideration of Rs. 11,000/-; that Dalu challenged agreement to sell dated August 23, 1979 and sale deed dated November 14, 1979 in favour of Jhamman and Likhi, defendant- respondents, being bogus and sham transaction and created only to defeat his right; that Subordinate Judge I Class, Palwal, vide judgment and decree dated February 16, 1983 (Exhibits D-3 and D-4), decreed the suit filed by Dalu and held that agreement to sell dated August 23, 1979 and sale deed dated November 14, 1979 executed pursuant thereto in favour of Jhamman and Likhi, defendant-respondents, were not genuine and did not create lawful title in their favour; that Jhamman and Likhi, defendant-respondents, assailed the judgment and decree of Subordinate Judge 1 Class, Palwal dated February 16, 1983 (Exhibits D-3 and D-4) in Civil Appeal No. 27 of 24.3.1983/18.6.1984 and the same was dismissed by Shri D.D. Yadav, Additional District Judge II, Faridabad, vide judgment and decree dated October 11, 1984 (Exhibits D-1 and D-2); that after the Civil Court''s judgment and decree dated February 16, 1983 (Exhibits D-3 and D-4 Dalu died and the vendees were made party respondents in the appeal filed by Jhamman and Likhi, defendant-respondents; that pursuant to the decree for specific performance of agreement to sell dated September 19, 1979, sale deed dated January 29, 1986 (Exhibit P-1) was executed in favour of the vendees; that the sale pursuant to sale deed dated January 29, 1986 (Exhibit P-1) was sought to be pre-empted by Jhamman and Likhi, plaintiff-respondents (hereinafter the 1st pre- emptors) through Civil Suit No. 271 of 24.4.1986 (giving rise to Regular Second Appeal No. 1358 of 1990) and by Hansa, plaintiff-respondent (hereinafter the 2nd pre-emptor) by Civil Suit NO. 883A RBT of 1987 (originally instituted on 11.10.1986) giving rise to R.S.A. No. 1359 of 1990; that the 1st pre-emptors and the 2nd pre-emptor claimed superior right of pre-emption being co-sharers in the suit land.

The vendees controverted the pleas of the 1st pre-emptors and the 2nd pre-emptor and denied that they had preferential right to purchase the disputed land.

The trial Judge found that the 1st pre-emptors and the 2nd pre-emptor were co-sharers in the suit land. The other pleas of the vendees were negatived and on ultimate analysis, it was held that the 1st pre-emptors were entitled to a decree for possession by way of pre- emption to the extent of 1/4th share and the 2nd pre-emptor to the extent of 3/4th share in the suit land.

The vendees aggrieved against the judgment and decree of the trial Judge dated May 13, 1988 assailed the same in Civil Appeals No. 55/13, and 56/13 of 11.8.1989 (originally instituted on 10.6.1988). The first appellate Court, on apprisal of the evidence, upheld the judgments and decrees of the trial Judge and dismissed the appeals.

In these regular second appeals, learned counsel for the vendees made the following submissions:-

(i) that the sale deed executed pursuant to the decree forspecific performance of the agreement to sell was not pre-emptible;

(ii) that the 1st pre-emptors were party to the suit for possession by way of specific performance of the agreement to sell and in that suit they had claimed right to property having purchased the same from the vendor and they were estopped from saying that the sale in their favour was bad and they could pre-empt the impugned sale; and

(iii) that the first pre-emptors and the 2nd pre-emptor were not co-sharers.

The first submission that the sale in execution of decree for specific performance of the agreement to sell is not pre-emptible is devoid of any merit. The matter is no more res-integra. It has been authoritatively laid down that sale executed by a Commissioner appointed by the Court in favour of a decree-holder in execution of the decree for specific performance of the agreement to sell is pre-emptible. (See in this connection, Balbir Singh and Others Vs. Kulwant Singh and Others, , Gurdial Singh and Others Vs. Sewa Singh and Others, , and Swaran Kaur v. Gumam Singh @ Amrik Singh and Ors. 1985 P.L.J. 600.

As regards submission No. (ii), indisputably in the suit for possession by way of specific performance the 1st pre-emptors were party defendants. They were impleaded as party defendants as they had claimed that they had a prior agreement to sell in their favour and the land had been transferred to them pursuant thereto, but the civil Court in that suit had held that the agreement to sell and the sale deed executed pursuant thereto in their favour was not genuine and that the agreement to sell and the sale deed did not create any lawful title in their favour. Since the sale in their favour had been found to be bad at law, no right accrued therefrom in their favour. They were not debarred from establishing other right, if any, with regard to the disputed land.

As regards submission No. (iii), the first appellate Court, after taking into consideration the copies of Jamabandis for the years 1980-81 and 1982-83, Exhibits P-2 and P-3 and admission made in his statement by D.W. 4 Padam, one of the vendees, came to the conclusion that the 1st pre-emptors and the 2nd pre-emptor were cosharers in the joint Khewat out of which the suit land had been sold and that the 1st pre-emptors had 114th share and the 2nd pre-emptor was owner to the extent of 3/4th share.

The findings recorded by the first appellate Court, on appreciation of evidence, that the 1st pre-emptors and the 2nd pre- emptor were co-sharers and they had a superior right of pre-emption u/s 13(i)(b)(iv) of the Punjab Pre-emption Act are essentially findings of fact and are not open to exception in second appeal. Learned counsel for the vendee-appellants did into question the decree passed in favour of the 2nd-preemptor. Even otherwise, the appeals are bereft of any merit.

For the reasons stated above, the appeals fail and are dismissed, but with no order as to costs.