Ram Tari & Ors @APPELLANT@Hash Shri Rattan Chand & Ors

Dharam Chand Chaudhary, J.

This appeal is directed against the judgment and decree dated 31.7.2013 passed by learned Additional District Judge (II), Una in Civil Appeal No.

19/2012, whereby the appeal has been dismissed and the judgment and decree dated 1.9.2007 passed by learned Civil Judge (Senior Division), Una,

District Una in case No. 183 of 1996 is affirmed.

This appeal when listed for admission/hearing on 26.11.2015 , the following order came to be passed:

“Learned Counsel, representing the appellants-plaintiffs, submits that a similar matter, RSA No. 258 of 2012, Roshan Lal versus Pritam Singh,

involving the identical question of law referred to a Larger Bench by a Coordinate Bench of this Court is pending disposal before the Larger Bench.

List after the question of law referred to the larger Bench is decided.â€​

The Division Bench of this Court has now decided the question of law referred to in Roshan Lal’s case supra vide judgment dated March 01,

2018.

Now if coming to the factual matrix, the appellant-plaintiff has filed suit for possession by way of preferential right under Section 22 of the Hindu

Succession Act, 1956 of the suit land entered in the land measuring 6 Marlas being 1/6 share of land measuring IK-19 Mls. In Khewat No. 806,

Khatoni No. 1920 Khasra Nos. 23143, 2322, 2324, two rooms Kharposh standing over Khasra No. 2313, situated in village Khad, Tehsil and district

Una (hereinafter referred to as the ‘suit land’) to the extent of half shares on payment of Rs.15,000/-, the sale consideration to the defendants.

The plaintiff and defendant No. 2 on the death of their father Sarna had inherited the suit land in equal shares. The brother of the plaintiff, Pritam

the defendant No. 2, has disposed of his share including the constructed abadi to defendant No. 1 vide sale deed No. 628 dated 28.5.1996 (wrongly

mentioned as 28.5.1995 in the plaint). The plaintiff being joint owner and having agricultural interest in the suit land as well as preferential rights to this

property coupled with the factum of willing to purchase the same on payment of the determined sale consideration aggrieved by the sale thereof in

favour of defendant No. 1 has filed the suit for possession thereof on payment of the sale consideration, on the grounds, inter alia, that he is still in

possession of the land and also the constructed abadi.

The suit was resisted and contested by defendant No.1 on the grounds, inter alia, that the same is not maintainable nor the plaintiff has locus standi

and cause of action to file the same. Also that, the land in dispute was not joint and rather defendant No. 2 was having all rights to dispose of his share

to them.

In view of the pleadings of the parties, learned trial Court has framed the following issues:

Whether the plaintiff has preferential right to acquire the suit property and to get possession as alleged? OPP

Whether suit is not maintainable in the present form ? OPD

Whether the plaintiff has no locus standi to file the present suit? OPD

Whether the plaintiff has no cause of action? OPD

Whether the plaintiff is estopped to file this suit by his act and conduct? OPD

Relief.

After holding full trial and affording opportunity of being heard to the parties on both sides, learned trial Court while answering Issue No. 1 has

concluded that the plaintiff led no evidence to show that he offered to purchase the share of defendant No. 2 but the said defendant declined to sell

the same to him. Issue No. 1, as such, was answered against the plaintiff, whereas the remaining issues against the defendants. The suit was

ultimately dismissed. Learned lower Appellate Court has dismissed the appeal and affirmed the judgment and decree passed by learned trial Court.

The legality and validity of the impugned judgment and decree has been questioned on several grounds, however, mainly that the evidence available

on record has not been appreciated in its right perspective when as per the document Ext.PW1/A the suit land was established to be joint Hindu co-

parcenary property. Only a small portion thereof has been shown as Barani in this document, whereas the remaining was agricultural land, therefore,

the provisions contained under Section 22 of Hindu Succession Act were fully attracted. The findings that the suit land being agricultural, hence the

provisions contained under Section 22 of the Act were not applicable, are stated to be illegal and contrary to the factual position as the constructed

abadi was also in-existence over the suit land. The findings that for want of copy of sale deed No. 628 normally declaration qua the same null and void

and not binding upon the plaintiff could have not been granted because it was for learned counsel representing the appellant- plaintiff to have produced

the same in evidence. He cannot be made to suffer on account of the fault if attributed to learned counsel. The appellant-plaintiff being co-sharer in

the suit land has preferential right to purchase the same. The findings that the plaintiff did not offer to purchase the land in the share of defendant No.

2 are also stated to be illegal and erroneous as according to the appellant-plaintiff there is no such legal requirement and even defendant No. 2 has

also not disclosed that he intend to sell the suit land to defendant No. 1 or any one else. Had any such intention been disclosed by him, the plaintiff

would have definitely offered himself to purchase the same.

The appeal is admitted on the following substantial questions of law:

Whether on account of misreading, misappreciation and misconstruction of the law and facts as well as the oral and documentary evidence

available on record, the judgment and decree under challenge in the main appeal being perverse and vitiated is not legally sustainable?

Whether the findings that the provisions contained under Section 22 of the Hindu succession Act are legally and factually unsustainable?

At the outset, it is desirable to refer to the judgment of this Court in Roshal Lal’s case cited supra. As per the ratio of this judgment, the

expression ‘property’ under Section 22 of the Act cover all kinds of property including agricultural land. The view of the matter so taken by this

Court is supported by the judgment of Apex Court in Vaijanath & others vs. Guramma & another, (1999) 1 SCC 292. The view of the matter taken by

this Court in Roshal Lal’s case supra is reproduced as follow:

“We are in respectful agreement with the view of the matter taken by the learned Single Judge that the expression “property†would cover all

kinds of properties, including agricultural land, which view finds support from the decision rendered by the Apex Court in Vaijanath (supra). Now,

significantly the Apex Court was dealing with the provisions of the Hindu Women’s Rights to Property Act, 1937 which did not define the word

‘property’ which in fact, is similar to the position with the statute with which we are dealing. Noticeably, laws relating to women came to be

enacted not only to mitigate hardship but also to confer certain rights upon women and widows.

The provisions contained under Section 22 of the Act have, therefore, to be construed and understood in the light of the above legal principles settled

by the Supreme Court. Nothing is there in Section 22 of the Hindu Succession Act, 1956 to prohibit its applicability to “agricultural land†and for

that matter even to any other kinds of land including “Banjar Kadimâ€​ and “Gair Mumkinâ€​, (the subject matter of dispute in the present lis). As

a matter of fact, words “immovable propertyâ€​ in Section 22 of the Act covers all kinds of land including “agricultural landâ€​.

While explaining the scope and object sought to be achieved by the law maker by incorporating Section 22 in the Hindu succession Act in Roshan

Lal’s case supra, it is held further as under:

“The intention behind to give preferential right to a heir(s) as envisaged under Section 22 of the Act, to acquire property of other heirs in certain

cases, therefore, is with the sole object to prevent the fragmentation of the estate and introduction of strangers in the family business and estate. After

the commencement of the Hindu Succession Act, 1956, if the interest in any immovable property or business carried by an intestate devolves upon

two or more heirs specified in class I of the Schedule and if anyone of such heirs proposes to transfer his/ her interest in the property or the business,

the other heirs shall have a preferential right to acquire such interest proposed to be transferred. The consideration for acquisition of that interest

either may be mutually agreed upon between those two heirs and in the absence of any such agreement, the matter has to be decided by the Court on

an application to be filed under Section 22 of the Act. If the applicability of Section 22 of the Act is excluded in the case of “agricultural landâ€, the

very purpose of such benevolent provisions therein shall be frustrated.

As noticed by brother Justice Karol in para supra, there are two divergent views qua the applicability of Section 22 of the Act to “agricultural

landâ€. Section 22(1) of the Act refers to the immovable properties and business alone. In our considered opinion, the expression “immovable

property†is quite wide to include agricultural land(s) and for that matter any other land including “Banjar Kadim†and “Gair Mumkinâ€, the

subject matter of dispute in the present lis.

As already noticed, the object behind it is very noble i.e. to prevent the fragmentation of holdings, the entry of a stranger to the immovable property

and business left behind by an intestate and on the top of it to give some solace to the intestate at his heavenly abode that after his/her death the

successors do not allow any third person or stranger to enter upon the estate/business, he/she left behind.â€​

In view of the ratio of the judgment in Roshan Lal’s case supra, I am not in agreement that the findings recorded by both Courts below that

the appellant-plaintiff did not offer himself to purchase the land to the extent of share of his brother defendant No. 2 for the reasons that it has been

noticed in the judgment supra that a scrupulous co-sharer some time don’t disclose his intention to other co-sharer to dispose of his/her share in

the property in question. The legislative intent, therefore, is that it was for defendant No. 2 to have disclosed his intention to dispose of his share in the

land in question to the plaintiff and called upon him to purchase the same, if interested. The plaintiff, as such, is absolutely justified in claiming that he

had no knowledge of the intention of defendant No. 2 to sell the land in question to defendant No.1. True it is that defendant No. 2 has sold the land by

way of sale deed dated 28.5.1996.

The sale deed though has not been produced in evidence, however, there is no denial and rather defendant No. 1 has admitted the factum of he has

purchased the land in question vide sale deed No. 628 dated 28.5.1996. Therefore, the findings to the contrary that without producing the sale deed in

evidence its cancellation cannot be ordered are not legally sustainable. It is worth mentioning that the judgment of this Court in Roshan Lal’s case

supra take care of a situation when the land is already sold and the sale deed registered as it has been held that already concluded sale transaction can

also be reopened, of course on payment of the sale consideration either as mutually agreed or at the rates of land prevalent in the market. Therefore,

second substantial question of law, as arises for determination in this appeal, is answered accordingly and it is held that both courts below have not

considered the provisions contained under Section 22 of the Hindu Succession Act in its right perspective and thereby the findings as recorded are

vitiated.

Now if coming to the first substantial question of law, on facts the controversy is not much because the plaintiff and defendant No. 2 have

inherited the suit land from their forefathers. Both courts below have held the same to be the co-parcenary property. The plaintiff and defendant No. 2

have inherited the same on the death of their father Sarna. There is again no controversy qua this aspect of the matter. The averments in para-4 of

the plaint that defendant No. 1 has purchased the suit land vide registered sale deed No. 628 dated 28.5.1996 for a sum of Rs.15,000/- have not been

specifically denied in para-4 of the written statement. The silence of defendant No. 1 in this regard, therefore, amounts to his admission meaning

thereby that the suit land was purchased by him from defendant No. 2 in a sum of Rs.15,000/-. In view of the own admission of defendant No. 1, both

Courts below have erroneously concluded that the sale deed when on record cannot be cancelled for the reasons that there being no dispute qua

execution of the same, the sale deed was not required to be produced in evidence. Otherwise also, it was for learned counsel to have produced the

same in evidence. The plaintiff as such cannot be made to suffer for the fault, if any, of learned counsel representing him. The facts of the case and

the evidence available on record have, therefore, also been mis-appreciated and misinterpreted by both Courts below and as a result thereof the

findings as recorded are vitiated, hence not legally sustainable. The first substantial question of law is also answered accordingly.

For all the reasons hereinabove, the impugned judgment and decree is not legally and factually sustainable. The same, as such, is quashed and set

aside. Consequently, the suit is decreed and the plaintiff held entitled to the possession of suit land by way of exercising his preferential right of course

on payment of the sale consideration either as agreed upon or determined by the competent Court on an application to be filed under Section 22 of the

Hindu Succession Act for the purpose. So far as registered sale deed No. 628 dated 28.5.1996 executed qua the suit land by defendant No. 2 in

favour of defendant No. 1 and any other consequential action are held illegal, null and void, hence quashed. In the peculiar circumstances, the parties,

however,to bear their own costs.

The appeal is accordingly allowed and stands disposed of, so also the pending application(s), if any.