Raj Pal vs Paras Ram

S.K. Jain, J.—The facts of this case are in a narrow compass. Smt. Kasturi sold 1/2 share of Killa No.2/2 of Rectangle No. 10, Khewat No. 23, Khatoni No. 37 to Raj Pal, plaintiff, on May 6, 1988. Thereafter, she sold 1/2 share of Killa No. 3/1 of Rectangle No. 10 in Khewat No. 23, Khatoni No. 37 to Paras Ram defendant on July 19, 1988. Raj Pal pre-empted the sale dated July 19,1988 by filing civil suit No. 1547 of 1989 instituted on December 7, 1989. The suit was contested by Paras Ram and the parties fought the litigation on the following issues:-

(1) Whether the plaintiff has superior right of pre-emption in the suit land, as alleged ? OPP.

(2) Whether the plaintiff has no locus standi to file the present suit ?

(3) Whether the plaintiff is estopped from filing the present suit by his own act and conduct, omission, acquiescence and latches ? OPD.

(4) Whether the plaintiff is neither co-owner nor co-sharer of the suit land? OPD.

(5) Whether the suit is not maintainable in the present form ? OPD.

(6) Whether the plaintiff has no cause of action to file the present suit? OPD.

(7) Relief.

The learned Sub Judge IInd Class, Gurgaon, vide his judgment and decree dated January 12, 1991 decreed the suit of the plaintiff. The defendant challenged the same in Civil Appeal No. 19 of February 8, 1991. The leared Additional District Judge, Gurgaon, reversed the finding of the learned trial Court on issue No. 1 with regard to the preferential right of pre-emption of the plaintiff, accepted the appeal and dismissed the suit of the plaintiff vide his judgment and decree dated August 16, 1991.

It is that judgment and decree of the first Appellate Court which has been appealed against by the plaintiff and which requires my examination of its sustainability.

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

The sole argument which has been advanced by the learned counsel for the appellant before me is that the learned first Appellate Court had wrongly held that the plaintiff became co-sharer in Killa No. 2/2 by purchasing 1/2 share of the vendor therein but had not become co-sharer in Killa No. 3/1. He had, therefore, reversed the findings of the trial Court on issue Nos. 1, 2 and 4 illegally.

Learned counsel for the respondent has argued supporting impugned judgment.

The learned trial Court vide Para No. 12 of its judgment found as under:-

"It is clear from the above discussion that plaintiff became co-sharer in the suit land on May 16, 1988 and he was co-sharer prior to sale of the suit land in favour of the defendant which was effected on July 19, 1988, and at the time of sale, and is co-sharer even today."

On the other hand, the learned lower Appellate Court vide para No. 8 of its judgment recorded following finding: -

"Copy of sale deed Ex. P-3 clearly shows that plaintiff purchased half share in Killa No. 10/2/2 only. The vendor had half share in the said Killa and the said entire half share of the vendor in that Killa was purchased by the plaintiff. Similarly, the vendor had half share in Killa No. 3/1 and the said entire half share was purchased by the defendant vide copy of sale deed Ex. D.1. Thus, the plaintiff became co-sharer to the extent of half share in Killa No. 2/2 only whereas the defendant has purchased half share in Killa No. 3/1 and has become co-sharer therein. In other words, the plaintiff has not become co-sharer in the Killa No. 3/1 and has become co-sharer in Killa No. 2/2 only. So, the plaintiff not being co-sharer in Killa No.3/1 of which a share has been sold has no right to pre-empt the same. By virtue of sale deed Ex.P-3, the plaintiff cannot claim any share in Killa No. 3/1 and so, the plaintiff cannot seek pre-emption of that Killa, the plaintiff did not purchase the vendor''s share in the entire Rect. No. 10 and so, it cannot be said that the plaintiff became co-sharer in the entire rectangle as argued by learned counsel for the plaintiff."

The question doing rounds right now is as to whether by purchasing 1/2 share in Killa No.2/2 of Rect. No. 10, the plaintiff became co-sharer in that killa alone and had no superior right to pre-empt the sale of 1/2 share of Killa No. 3/1 of the same rectangle.

Identical question came up for consideration before this Court in Mahesh Pal and Another Vs. Desh Raj Singh and Others, , wherein the ratio laid down in Lachhman Singh Sunder Singh v. Pritam Chand Kirpa Mal and Anr. (1970) 72 P.L.R. 341 , was followed and it was held as under:-

"Where the plaintiff purchased certain agricultural land in rectangle No. 37 out of the joint Khewat No. 69 from one of the co-sharer and the defendants purchased certain land of the same khewat from another co-sharer in rectangles Nos. 30, 36 and 37, the plaintiffs would not be entitled to pre-empt that sale by claiming themselves to be the co-sharer in the khewat. The plaintiffs would be co-sharer in Rectangle No. 37 comprised in Khewat No. 69 only and therefore they would be entitled to claim possession of that land only by way of superior right of pre-emption and they would be entitled to a decree qua that part on payment of proportionate sale price"

Again, in Lachhman Singh''s case (supra), it was held as under:-

"Where a Co-sharer sells to the plaintiff his one-fourth share out of a defined part of the joint land of the co-sharers but not out of the whole of their joint land, the sale is not "of a share out of joint land" within Section 15(1)(b) Fourthly, and the plaintiffs do not become co-sharers with the other co-sharers in the joint land and have, therefore, no preferential right of pre-emption in regard to the sale of a part of his share made subsequently by another co-sharer to the defendant. The plaintiffs have a fractional share in defined and specific portion of joint holding of the co-sharers but not in the total area of their joint land."

In Bhartu v. Ram Sarup 1981 P.L.J. 204, the question posed as, "Whether the sale of a specific portion of land described by particular khasra numbers by a co-owner out of the joint khewat would be a sale of share out of the joint land and pre-emptible u/s 15(1)(b) of the Punjab Pre-emption Act ?" The Full Bench answered the above said question as under:-

"We, therefore, answer the question in the affirmative and hold that the sale of a specific portion of land described by particular khasra numbers by a co-owner out of the joint khewat would be a sale of share out of the joint land and pre-emptible u/s 15(1)(b) of the Punjab Pre-emption Act"

Here in the case in hand Raj Pal plaintiff had purchased 1/2 share in Killa No.2/2 of Rectangle No. 37 of Khewat No.23 from Smt. Kasturi. Defendant Paras Ram had purchased 1/2 share in Killa No. 3/1 of the same rectangle No. 10 of Khewat No. 23 from Smt. Kasturi. Therefore, seen from any angle the plaintiff having become co-sharer in Rectangle No. 10 of Khewat No.23 his case would squarely fall within the provisions of Section 15(1)(b) Fourthly of the Act and he would certainly have preferential right to pre-empt the sale in question.

For the reasons recorded above, this Regular Second Appeal is allowed and the judgment of the Lower Appellate Court is reversed and that of the trial Court restored. If the pre-emptor has not yet deposited the decree money, he will deposit the same within one month from today. No costs.