Jagdish Singh and others vs Dalip Singh and others

G.C. Mital, J.—On 3.3.1979 Bhai Ram sold Killa No. 32/18 measuring 8 Kanals The sale was out of Khewat No. 95 and Khatauni Nos. 106 to 112 for Rs. 12,000/- in favour of Jugdish Singh and other appellants. On 4.4.1980. Dalip Singh filed a suit for pre-emption as a co-sharer. The trial Court by judgment and decree dated 3.3.1981 dismissed the suit in view of Mst. Gurnam Kaur v. Ralla Ram 1970 P.L.J. 687 and Bakshish Singh v. Gurcharan Singh and others 1972 P.L.J. 672 after recording a finding that the sale was with regard to a specific Killa number and not a share, hence was not pre emptible. The pre-emptor went up in appeal While the case was pending before the lower Appellate Court, a Full Bench in Bhartu v. Ram Saroop 1981 P.L.J. 204 ruled that even if a co-sharer sells a particular Khasra number instead of selling his share in that Khasra number or his share in the total holding, yet in law, the sale would be treated as by a co-sharer and can be preempted by the other co sharer. The two decisions relied upon by the trial Court were specifically over ruled Consequently, it held that the plaintiff was a co sharer with the vendor and had the right of preemption. However, during the pendency of the appeal, the defendant sought amendment of his written statement to plead that the joint land had been partitioned during the pendency of the suit, with the result the vendor and the pre emptor ceased to be a co-sharer and as such the pre emptor ceased to have the right of pre emption as a co sharer and the appeal be dismissed on this score. The amendment was allowed and two additional issues Nos. 5-A and 5-B were framed as follows:-

(5A) Whether the land had beed partitioned as alleged? If so, its effects?

(5B) If issue No. 5A is proved whether the plaintiff-appellant was a minor and such partition had no effect on the rights of the plaintiffs?

Both the parties were allowed to lead evidence on these issues. Both the issues were decided in favour of the pre emptor and it was held that neither there was partition and if at all there was a partition it was not binding on the minor plaintiff and as such did not affect his rights, with the result the appeal was allowed and the preemption suit was dismissed as prayed for. This is vendees'' second appeal.

After hearing the Learned Counsel for the parties, I am of the view that the plaintiff-respondent had superior right of pre-emption as a co-sharer in view of Full Bench decision of this Court in Bhartu''s case (supra). The decision of the Full Bench was sought to be challenged before me. Sitting singly, I am bound by the Full Bench besides the fact that I was also a member of the Full Bench.

Coming to the other point, which was raised for the first time before the lower Appellate Court, I find no merit in that point either The case of the vendees is that an order of partition was made by the Collector under the Land Revenue Act on 8 12 1981 Assuming for the sake of arguments, that there was partition made by the aforesaid order which was binding on the minor plaintiff yet I am of the view that the right of the plaintiff to seek pre-emption is not taken away by such order of partition. It is well established by now that a pre emptor has to show that he had a right of pre-emption on the date of sale, as also on the date of suit, which right should continue upto the date of decree of the trial Court and not beyond that date. The decree of the trial Court is dated 3.3.1981. Therefore, if the plaintiff had a right of pre-emption till 3.3.1981 the partition made subsequent thereto, will not affect his right. Admittedly, according to the vendees'' own case, the partition was made on 8.12.1981. Accordingly, it is established that the pre emptor had a right of pre-emption on the date of sale, on the date of suit and also upto the date of decree of the trial Court. Therefore, the order of partition obtained by the vendor on 8.12.1981, is of no consequence and would not stand in the way of the pre-emptor to succeed.

For the reasons recorded above, this appeal is devoid of merit and is dismissed but without any order as to costs.