Krishan vs Ram Pal and Another

V.K. Bali, J.—This order shall dispose of four connected Regular Second Appeals bearing Nos. 159 of 1994, 1914 of 1993, 172 of 1994 and 2011 of 1993 as the only question involved in all the matters is as to whether the right of pre-emption given to a co-sharer under the provisions of the Punjab Pre-emption Act would cease if during the pendency of appeal the vendee has/have successfully got the land partitioned?

The facts of R.S.A. No. 159 of 1994 reveal that one Bhim Singh had sold his 374/2101 shares i.e. land measuring 18 kanals 14 marlas out of total area of 105 kanals 1 marla situated in village Deeg, description whereof has been fully given in para 1 of the plaint. The land aforesaid was purchased by Krishan, the appellant herein. The sale deed was registered on June 15, 1989 for a consideration of Rs. 74,800/-. Ram Pal-plaintiff/respondent herein instituted a suit to pre-empt the sale on the ground that he was co-sharer in the land and had, thus, superior right to purchase the same. The suit of plaintiff-respondent was decreed and the appeal preferred against the judgment and decree passed by the trial Court met with no success and, therefore, present Regular Second Appeal has been filed by Krishan.

The contention of learned counsel appearing for the appellant is that even the events subsequent to passing of decree for pre-emption have to be taken note of by the appellate Court while hearing appeal and if during the pendency of the appeal, partition between the co-sharers has been effected, plaintiff-pre-emptor would cease to have his preferential right to get the sale in his favour, as, he has to maintain the right of pre-emption at the time of sale as also at the time when he files the suit and when the decree is passed. Since the appeal is in continuation of suit only, the partition, even though effected during the pendency of the appeal, would knock out the case of pre-emptor, contends the learned counsel. For his afore stated contention, learned counsel relies upon a very recent Division Bench Judgment of this Court in Suresh Kumar Vs. Chanchal Singh and Another, . In fact, the matter came to be disposed of by the Division Bench on a reference made by learned Single Judge of this Court after noting seeming conflict of decisions rendered by this Court in Santokh Singh v. Lajja Ram and Anr. 1986 PLR 496 and Lakhwinder Singh and Ors. v. Balvinder Singh and Ors. 1987 PLR 505. After thoroughly discussing the matter and relying upon a number of judgments, the Division Bench held as follows :-

"In view of the observations made above, we affirm the observations made in Santokh Singh v. Lajja Ram and Anr. (1986)90 P.L.R.406 that the subsequent events can not be lost sight of and a partition at any stage during the pendency of the proceedings for pre-emption would result in lossing the right of pre-emption."

The matter, thus, stands authoritatively decided in favour of the appellant.

That apart, right of a pre-emptor to ask substitution of his name with that of the vendee has come to an end by way of the Punjab Pre-emption (Haryana Amendment) Act, 1995 introduced through notification dated May 7, 1995 and which received the assent of the Governor of Haryana on May 4, 1995. By virtue of the amendment, referred to above, right of pre-emption now vests only in the tenant who holds under tenancy of the vendor or vendors the land or property sold or a part thereof.

In view of what has been said above, there is no choice but for to allow this appeal and the same is accordingly allowed. Judgment and decree of the trial Court and so confirmed by the first Appellate Court is set-aside. Resultantly, the suit instituted by the pre-emptor is dismissed leaving, however, the parties to bear their own costs.

R.S.A. No. 1914 of 1993.

The facts of this case reveal that one Amar Singh had sold land measuring 8 kanals situated in village Birdana to Dariya Singh vide registered sale deed dated April 24, 1989 for a sale consideration of Rs. 20,000/-. Ram Kishan, who was co-sharer in the khewat, on the basis of his superior right of pre-emption given to him under the Punjab Pre-emption Act, filed a suit for pre-emption which was decreed by the learned Sub Judge, Fathebad on May 6, 1991. Aggrieved, Dariya Singh, vendee of the suit land, filed an appeal which was accepted and judgment and decree of the learned trial Court was set-aside. The appellate Court entertained an application under Order 41 Rule 27 of the CPC and permitted the vendee to produce on records the partition deed which was exhibited as C-1 and by holding that since the plaintiff was no more a co-sharer in the khewat, out of which the suit land was sold, the suit aforesaid was dismissed and the appeal was allowed.

In view of the decision of Division Bench in Suresh Kumar''s case, reference of which has been given while disposing of R.S.A. No. 159 of 1994, this appeal has to be dismissed. So ordered. Parties are, however, left to bear their own costs.

R.S.A. 172 of 1994

The facts of this case reveal that Brij Lal had filed a suit for pre-emption with regard to sale made by Balwant in favour of Khem Chand. The sale was made on May 16, 1989 for a consideration of Rs. 80,000/-. Learned Senior Sub Judge, Faridabad, vide orders dated September 21, 1991, decreed the suit. Aggrieved, Khem Chand preferred an appeal against the judgment and decree passed by the learned trial Court but the same was dismissed. The first Appellate Court relied upon a decision of this Court in Jagdish Singh and Ors. v. Dalip Singh and Ors. (1982) 84 P.L.R. 677 to hold that if during the pendency of the appeal, the land, subject matter of pre-emption, has been partitioned, it shall have no effect.

In view of the Division Bench judgment of this Court in Suresh Kumar''s case, reference whereof has been given while disposing of R.S.A. 159 of 1994, there is no choice but for to allow this appeal. So ordered. Judgment and decree passed by the trial Court and so confirmed by the first Appellate Court is set-aside. Resultantly, the suit filed by the pre-emptor is dismissed leaving, however, the parties to bear their own costs.

R.S.A. 2011 of 1994.

Plaintiffs, Dalip and Atma Ram, filed a suit for possession by way of preemption in respect of land measuring 8 kanals 8 marlas, details whereof have been given in the plaint. The suit land was sold by Smt. Prema, Smt. Rameshwari and Mani Ram vide registered sale deed dated May 23, 1989 for consideration of Rs. 20,000/-. The matter came to be disposed of by Senior Sub Judge, Sirsa, on February 29, 1992. The suit was decreed. Aggrieved, Kirta Ram-vendee preferred an appeal which was dismissed. The appellant, before the first Appellate Court, had relied upon a partition order dated March 31, 1993 but in as much a the same had come into being during the pendency of the appeal, it was ignored by the first Appellate Court.

In view of the Division Bench judgment of this Court in Suresh Kumar''s case, reference whereof has been given while disposing of R.S.A. No. 159 of 1994, this appeal has to be allowed and is accordingly allowed. The judgment and decree passed by the trial Court and so confirmed by the first Appellate Court is set-aside. Resultantly, the suit filed by the plaintiff-respondent is dismissed. Parties are, however, left to bear their own costs.