Indraj vs Ami Lal and ors.

J.V. Gupta, J.—The plaintiffpetitioner has filed a suit for possession by way of preemption on the basis of his being a cosharer in the suit land. In the written statement filed on behalf of the vendeedefendants, a plea has been taken on the basis of improved status by virtue of sale deed dated October 22, 1981 regarding which the suit for preemption is also pending. On the basis of the said plea, the defendants wanted the plaintiff''s suit to be dismissed as such. The plaintiff moved an application under Section 28 (A) of the Punjab Preemption Act for staying the proceedings in the suit till the earlier suit for preemption challenging the sale vide sale deed dated October 22, 1981 was finally disposed of. According to the plaintiff preemptor, the present suit could not be decided unless the earlier suit in which the title of the vendeedefendants is involved on the basis of which the plea has been taken in the present suit is decided first. In reply to the said application, the vendee defendants submitted that their right of being cosharers by virtue of sale deed dated October 22, 1981 was not inchoate and indefeasible, as alleged. It was also denied that the right of the defendants was hit by Section 28(A) of the Punjab Preemption Act. According to the defendants, the application has been moved at a belated stage and Section 28(A) has no application to the facts of the present case as the same applies only to the right of a preemptor.

The trial Court took the view that Section 28(A) of the Punjab Preemption Act has no application to the facts of the present case and there are no sufficient grounds for postponement of the decision of the present case till the decision of the preemption suit with respect to the sale deed dated October, 22 1981 pending in the Court of the Sub Judge, Ist Class, Gurgaon. Consequently, the application filed under Section 28(1) was dismissed.

The learned counsel for the petitioner vehemently contended that a bare perusal of Section 28 (A) will show that if, in any suit for preemption, any person bases a claim or plea on a right of preemption, derived from the ownership of the land or other immovable property and that title to such land or property is liable to be defeated by the enforcement of a right of preemption with respect to it, the Court shall not decide the claim or plea until the period of limitation for the enforcement of such right of pre emption has expired and the suits for preemption, if any, instituted with respect to the land or property during the period have been finally decided. According to the learned counsel, if in the earlier suit the plaintiff preemptor succeeds, then the plea of the defendants in the subsequent suit, that is, the present suit that they are cosharers in the suit land will not be available to them; and that being so, in view of the provisions of Section 28 (A) of the Punjab Preemption Act, the Court shall not decide the claim or plea of the defendants in the present suit till the earlier suit was finally decided. He also referred to the objects and reasons for introducing Section 28(A) in the statute book, which, according to the learned counsel, are relevant while interpreting the said section.

After hearing the learned counsel for the parties I find force in the contention raised by the learned counsel for the petitioner. According to the trial Court, the vendees of the sale deed dated October 22, 1981were not the same persons as in the disputed sale. In that sale, there were some other persons also as vendees. According to the trial Court, the vendors also in both the sales were different. Moreover,according to the trial Court there was nothing on record which may suggest an inference that the vendees split up the transaction of sale in two parts just to defeat the right of preemptor. According to the trial Court, both the transactions of sale are different effected by different vendors, one in favour of vendees and another in favour of vendees and some other persons. This approach of the trial Court appears to be erroneous. The language of Section 28(A) clearly provides that the Court shall not decide the claim or plea until the earlier suit in which the title to such land or property is liable to be defeated by the enforcement of right of preemption with respect to it is finally decided. Since the defendants want to defeat the right of the preemptor on the ground that they are also cosharers in the suit land because of the earlier sale deed dated October 22, 1981 and the said sale itself being under challenge, the present suit should have been stayed in view the provisions of Section 28(A) of the Punjab Preemption Act.

Consequently, this petition succeeds, the impugned order is set aside and the proceedings in the present suit are stayed till the final disposal of the earlier suit of preemption with respect to the sale deed dated October 22, 1981. However, there will be no order as to costs.