Prema vs Surat Singh and Another

S.K. Jain, J.—Vide this single judgment Regular Second Appeal No. 2178 of 1989 Prema v. Surat Singh etc. and Regular Second Appeal No. 2178-A of 1989 Prema v. Surat Singh and Ors., both arising out of the judgment and decree dated 14-8-1989 passed by Mrs. Nirmal Yadav, Additional District Judge, Gurgaon, are proposed to be disposed of.

Facts first, Prema defendant-appellant purchased 1/4 share, measuring 89 Kanals 6 Marias in joint agricultural land for, a sale consideration of Rs. 21,500/- He also purchased l/8th share of joint agricultural land for a sale consideration of Rs. 1,12,000/- from Jai Narain, Janki Parshad, Rameshwar Dass, Pitamber Dayal and Harish Chand. Claiming superior right of pre emption. on the ground of being co-sharers, Surat Singh etc pre empted the sales. Civil Suit No. 129 of 1986 for pre-empting the first sale was instituted on 3-9-1985 whereas Civil Suit No. 124 of 1986 for pre-empting the second sale was instituted on 15-101985. Both the suits were contested by vendees and the following issues were framed: -

CIVIL SUIT NO. 129 of 1986

Whether the plaintiff has superior right of pre-emption to preempt the suit land ? OPP

Whether the suit land was sold for consideration of Rs. 21,500/- if not what was the market value of the suit land at the time of sale? OPD

Whether the suit is bad for partial pre-emption ? OPD.

whether the plaintiff is estopped from filing the present suit by his act and conduct ?

Whether the 1/5th pre-emption amount has not, been deposited within time ?

CIVIL Suit No. 124 of 1986

Whether the plaintiff have superior right of pre-emption to pre-empt the suit land ? OPP.

Whether l/5th pre-emption amount has not been deposited within time ? OPD.

Whether the suit is bad for partial pre-emption 7 OPD.

Whether the plaintiff are estopped from filing the present suit by their act and conduct and acquiesence ?

Whether the vendee defendants have effected bonafide improvement in the land in question, if so to what effect ?

Whether the vandee defendants is entitled to stamp and registration charges ?

The learned trial Court after taking into consideration the evidence adduced by the parties at the trial and hearing their respective counsel dismissed the suit of the plaintiff.

Judgment and decree passed by the learned Subordinate Judge in Civil Suit No. 129 of 25-9-1986 was challenged by the pre emptor in Civil Appeal No. 13 of 27-2-1989 whereas that passed in Civil Suit No. 124 of 25-9-1986 was impugned in Civil Appeal No: 12 of 27-2-1989. Both these appeals were accepted and both the suits of the plaintiff were decreed by Additional District Judge, Gurgoan vide her single judgment and decree dated 14-8- 1989. It is that judgment and decree of the first Appellate Court which has been appealed against by the defendant and which requires my examination of its sustainability.

I have seen the pleadings in the suit, the evidence adduced by the parties in the suit and the judgment of both the Courts below.

Following fact deserve to be noticed for the decision of the controversy involved in these appeals :--

(i) Jangli defendant No: 2 in Civil Suit No. 129 had sold his 1/4th share measuring 9 Kanal-6 Maria of agricultural land vide registered sale deed dated 4-9-1984 for a sale consideration Rs. 21,500/-in favour of Prema ;

(ii) Jai Narain, Janki Parshad, Rameshwar Parshad, Pitamber Dayal and Harish Chand had sold l/8th share of the joint khewat in favour of Prema for a sale consideration of Rs. 1,12,C0C/-on 15-10-1984 ;

(iii) Surat Singh pre-emptor instituted Civil Suit No. 129 of 3 9-1983 for preempting the first sale dated 4-9-1984;

(iv) Surat Singh and others instituted Civil Suit No. 124 of 25-9-1986 for pre empting the second sale in favour of other co-sharers vendees Jai Narain etc. on 15-10-1984 ; and

(v) From jamabandi Ex. P-2 for the year 1982 83 it is evident that Surat Singh pre-emptor is the co-sharer in the suit land,

The point in controversy herein is as to whether by purchasing l/8th share from Jai Narain etc., out of the joint khewat, Prema vendee/ appellant had improved his status on having become co-sharer in the suit land, in view of Section 21-A of the Punjab Pre-emption Act, 1913 and, therefore, the plaintiff pre-emptor did not have a preferential right to pre-empt the sale and that the learned trial Court had wrongly interpreted the provisions of Section 21A and 28A of the Act while dismissing the suits.

Learned counsel for the vendee Prema in these two Regular Second Appeals has submitted that the vendee purchased l/8th share of the land from one set of co sharers namely Jai Narain etc. vide sale deed dated 15.10.1984 and 1/4 share of the land from another cosharer namely Jangli vide sale deed dated 4.9.1984 ; thus he had become co-sharer in the suit land after purchase from Jai Narain etc. co-sharers vide sale deed dated 15.10.1984 and the plaintiff Surat Singh did not have a superior right of preemption to pre-empt the sale effected in their favour on 4.9.1985. It was further contended that the pre-emptor must maintain his "superior right of pre-emption of the three material dates i e dated of sale, institution of the suit and the decree The plaintiff did not have a superior right of pre emption on these dates and the suit were not likely to succeed on this short ground This submission is without merit The right of pre-emption is a right of preferential purchase, and that the object of the law in recogaizing this right is to retain property in the hands of the persons who are intimately connected with it and who have natural desire to keep out the strangers. Plaintiff could pre-empt the sale so long as he could assert that he had a more intimate connection with the property than the vendee The vendee can improve his status and say that he had acquired the right at least equal to that of the pre-emptor But the acquisition of a new status by the vendee after the sale as a result of which he wants to contend that he had at least equal right to that of the pre-emptor is subject to the provisions of Section 28-A of the Punjab Pre-emption Act, 1913 (hereinafter referred to as the Act).

Section 28A of the Act is reproduced below for ready reference : --

"Section 28A. -- Postponement of decision of pre emption suits in certain cases,---If, in any suit for pre-emption, any person bases a claim or plea on a right of pre-emption derived from the ownership of agricultural land or other Immovable property, and the title to such land or property is liable to be defeated by the enforcement of a right of pre emption 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 preemption has expired and the suits for pre-emption (if any) instituted with respect to the land or property during the period have been finally decided. (2) If the ownership of agricultural land or other immovable property is lost by the enforcement of a right of pre emption, the court shall disallow the claim or plea based upon the right the pre-emption derived therefrom."

Analytical examination of the above-said provision would clearly show that if in the first suit, the plaintiff-pre-emptor succeeds, then the plea of the defendant in the subsequent suit that he was co-sharer in the suit land, will not be available to him and the plea of being co sharer cannot in any way be available to the defendant in the first suit and that the Court shall not decide the claim of the defendant in second suit until and unless the earlier suit is finally decided."

Section 28-A was enacted to meet a case where the vendee improves his status by his voluntary efforts, either during the pendency of the pre-emption suits or a bit earlier by acquiring requisite qualifications to compete with the intending pre-emptors. If the vendee, after acquiring necessary qualifications, wants to defeat the right of a pre-emptor, he cannot do so, on the basis of defeasible right thus acquired A vendee cannot get any benefit in the presence of the provisions, referred to above, so long as his inchoate right of pre-emption remains defeasible and does not mature into absolute right by efflux of time by limitation. The above said provision specifically provides for the case in which a vendee, who relies on improvement of status pendente lite in case he loses the land on which his improved status depends, as a result of being pre-empted. The effect of the mandate contained in Section 28-A is that if the pre-emptor has moved for pre-emption of the sale as a Jesuit of which the vendee is likely to improve his status, the latter cannot be allowed to urge that he had acquired the status equal to that of the pre-emptor by acquiring equal right as that of the pre emptor after the action for pre-emptor has been initiated. If any authority on the point is required a reference can be had to Smt. Maya Devi v. Rameshwar (1992) 102 P. L. R. 688.

In the instant case, as mentioned hereinbefore the preemptor had enforced his right of pre-emption with regard to the second sale effected vide sale deed dated 4.9.1984 first on 3.9.1985 whereas he preempted the first sale, vide sale deed dated 15.10.1984, by instituting the suit on 15.10.1984. The first suit No. 129 instituted on 3.9 1985 preempting the sale vide registered sale deed dated 4 9.1984 had to decided first and second suit No. 124 instituted on 15.10.1984 in respect of sale vide registered sale deed dated 15.10.1984 would be heard only after the result of the first suit. In the first suit, the plaintiff-vendee cannot take benefit of his being co-sharers due to the second sals vide registered sale deed dated 15.10 1984 and the preemption decree passed in Civil Suit No. 129 instituted on 3.9.1985 would vest proprietary rights in the pre-emptor from the date of sale and not from the decision of the suit and the vendee cannot be held to be a co-sharer on 4.9.1984. Since the vendee did not have any equal of preferential right as that of the plaintiff on 4.9 1984, therefore, the pre emptor was certainly entitled to a decree for possession by way of pre-emption inspite of the land sold vide registered sale deed dated 4.9.1984. Since the right of the vendee being co-sharer at the time of second sale vide registered sale deed dated 15.10.1984|had been defeated, he does not have status equal to the plaintiff-pre-emptor and, therefore, the plaintiff had a superior right of preemption qua the second sale vide registered sale deed 15.10.1984 also.

As a sequel to the above discussion, I do not find any fault with the findings recorded by the First Appellate Court vide her judgment and decree dated 14.8.1989 which are hereby affirmed and both the suits of the plaintiffs are decreed, subject to the condition that:-

(i) Civil Suit No. 129 of 1986 is decreed subject to the preemptor depositing sale price of Rs. 21,500/-plus Rs. 2,972/-on account of stamp and registration charges minus l/5th pre-emption money already deposited by them on or before 30 9.1993 failing which the suit shall stand dismissed ; and

(ii) Civil Suit No. 124 of 1986 is decreed subject to the preemptor depositing sale price of Rs. 1,12,000/- plus Rs. 14,501/- on account of stamp and registration charges minus 1/5th preemption money already deposited by them on or before 30,9.1993 failing which their suit stands dismissed.

Both the appeals fails and are dismissed as such. However, the parties are left to bear their own costs of these appeals.