Shubh Ram and Others vs Rajinder Singh and Others

R.K. Nehru, J.—The plaintiff pre-emptors-appellants have come up in this Court in Regular Second Appeal against the judgment and decree of the first appellate Court, Gurgaon reversing on appeal those of the trial Court and dismissing their suit for possession by pre-emption of the suit land.

FACTS:

Des Raj and Randhir Singh sons of Kamla sold the suit land to defendants No. 3 and 4 (hereinafter the venders) vide sale deed dated July 26, 1980 for Rs. 15,500/-. The plaintiffs claim superior right of pre-emption being co-sharers of 1/3rd share of the suit land having purchased the same from Mohinder Singh.

The suit was contested by the vendees inter alia on the ground that the suit land had been partitioned during the pendency of the suit. The trial court found that the plaintiffs being co-sharers had a superior right of preemption. It further found that the pre-emptors maintained superior right of pre-emption on the date of sale, on the date of the suit and on the date of decree.

The vendees feeling aggrieved against the judgment and decree of the trial Court challenged the same in the first appeal. The first Appellate Court found that the revenue officer who was seized of the partition application had conducted the proceedings in a great haste. It, however, held that the validity of the partition proceedings cannot be challenged in the Civil Court. It was referred to a copy of the order passed by the collector staying further partition proceedings. On the basis of the various orders passed by the revenue officer, it held that the joint land stood partitioned and the pre-emptors ceased to have superior right of pre-emption on the date of the suit. It reversed the judgment and decree of the trial Court and dismissed the suit.

The pre-emptors who lost battle in the first Appellate Court has come in appeal to this Court.

The only question which arises for determination is whether the pre-emptors maintain a superior right of pre-emption on the date of the decree? Admittedly, they had attained superior right of pre-emption on the date of sale and the institution of the suit their claim is sought to be defeated on the ground that before passing of the decree, they have lost their superior right of pre-emption for the reason that the joint land had been partitioned before that date.

Learned counsel for the plaintiffs further stressed before the first Appellate Court that various orders passed by the revenue officer seized of the partition application were in direct violation of the statutory provisions contained in Sections 117, 118, 120, 121 and 122 of the Punjab Land Revenue Act and the orders which are passed in violation of the mandatory statutory provisions are nonest. The first Appellate Court did not have any dispute with the propositions of law stressed before it but it was of the opinion that the validity of these orders could not be challenged in the Civil Court. It probably was of the opinion that it was for the Appellate or Revisional authorities under the Punjab Land Revenue Act to correct the errors made by the revenue officers in the course of partition proceedings. There is a distinction between void and voidable orders. If a party against whom void orders were being used to deprive him of a right, that party could challenge the validity of that order on the ground that those were void at the stage when these were used against him. This was probably the precise argument of the learned counsel for the plaintiffs before the first Appellate Court. The parties counsel are not in a position to state as to what were the orders passed by the Appellate Court who was seized of the appeal against the order of the revenue officer passed in the course of partition proceedings. In the circumstances, an important question of law arose which needed determination. The parties to the lis were also not negligent in not producing the evidence which go to the root of the case before the trial Court.

A perusal of the orders passed by the revenue officer leaves an impression that he passed the orders not warranted by the statutory provisions and that the officer was in great haste to dispose of the partition application. The haste in which he disposed of the partition application leads to an inference that he was not acting in a judicious manner. The revenue officer was to dispose of the application for partition in the manner prescribed under the Act. If he acts in violation of the statutory provisions, the orders are void. In the circumstances of this case, the interest of justice requires that the case should be remanded to the first Appellate Court for deciding the question whether the joint land had been partitioned, in accordance with law before final decree for possession by pre-emption was passed by the trial Court. There is no dispute with the proposition of law that the pre-emptors must maintain their superior right of pre-emption at three stages viz, on the date of sale, on the date of institution of the suit and on the date of the decree. If they have lost their superior right of pre-emption on the date of the decree, their suit could not succeed.

For the reasons stated above, the appeal succeeds, the judgment and decree of the first Appellate Court is set aside. The case is remitted to the first Appellate Court for deciding the appeal afresh. The first Appellate Court will permit the parties to lead such further evidence in proof and disproof of their assertions that the joint land had been partitioned. No order as to costs. Parties to appear in the first Appellate Court on 27.8.1993, for further proceedings.