Mala Ram vs Subhash Chander and ors.

Gokal Chand Mital, j.

Subhash Chander and three others filed suit to preempt the sale of 46 Kanals 6 Marlas on the ground that they are cosharers of the vendors. The trial Court decreed their suit in regard to 31 Kanals 4 Marlas. The vendee went up in appeal and the preemptors filed crossobjections. The vendee''s appeal was dismissed but the crossobjections of the preemptors were allowed and the decree for preemption was passed for 43 kanals 9 Marlas. Kadam Singh was a rival preemptor. The lower Appellate, Court in his appeal came to the conclusion that he was entitled to preemption on the ground of relationship with the vendors and since he had a superior right to preempt, he was given the first choice to deposit the amount by a certain date and failing him, an extended date was given to the cosharers to deposit the preemption amount. This appeal has been filed by the vendee against the judgment and decree in favour of cosharers.

Today, the appeal filed by the vendee against Kadam Singh the rival preemptor, has been allowed and the suit for preemption filed by him has been dismissed as the ground of preemption on account of relationship has been declared ultra vires by Supreme Court in Atam Parkash v. State of Haryana and others, 1986 RLR 226 : 1987 RRR 116. The rival preemptor is out from the scene and it has to be seen whether the lower Appellate Court was right in granting the preemption decree in favour of cosharers in regard to 43 Kanals 9 Marlas.

It is urged by Shri V. K. Jain, Advocate appearing for the vendee, that the sale was of 46 Kanals 6 Marlas whereas the lower Appellate Court has found the preemptors to be entitled to 43 Kanals 9 Marlas out of sold land, with result that in remaining sold, land, the vendee became cosharer by purchase and on the date of suit he had equal status in the land as co sharer as was of the preemptors and, therefore, since the preemptors did not have superior right of preemption, the suit for preemption has to be dismissed. In support of the argument, reliance is placed on Anup Singh and another v. Ilam Chand, 1978 RLR 588 and Chander v. Madan Gopal, 1981 RLR 478.

The contention raised on behalf of the vendee is meritorious in view of the aforesaid decisions. If the preemptors had been found entitled to preempt the entire sale, the matter would have been different, but according to the lower Appellate Court they are entitled to only for a part of, the land sold and not whole. It is true that if the preemptors had filed second appeal or crossobjections, in vendee''s appeal, they would have been entitled to a decree for the entire sold land in view of Nand Kishore v. Avtar Singh, 1988(1) RRR 574 (SC) : 1988 PLJ 47 but they have remained content with part of the land. By retaining the remaining land, the vendee has also become cosharer both on the date of sale and on the date of suit, which is a status equal to that of the preemptors, the suit for preemption cannot be decreed.

For the reasons recorded above, the appeal is allowed and after setting aside the judgments and decrees of both the courts below, the suit for preemption is dismissed leaving the parties to bear their own costs. The preemption amount be refunded to them.