Surjit Singh and Others vs Gurnam Singh and Others

Grover, J.—The second appeal arises out of a suit for possession by pre-emption of land measuring 926 bighas in village Teliwara in Hissar District which has been decreed by the Courts below to the extent of 11/12th of that area.

The plaintiffs had purchased land in khewats Nos. 2 and 3 on 10th May, 1955 in respect of which mutation, Exhibit P. i, was made They had purchased the share of Khetu and Chandu Ram, the area being 3/22nd share in Khewat No. 2, khatas Nos. 26 to 44 in a total area of 1520 bighas 11 bisuas working out to 207 bighas 7 biswas and 3/44th share in 3 bighas biswas in Khewat No. 3, khatas 49 to 54 coming to 6 bighas 7 bisuas. Thus the total area purchased was, 213 bighas 14 biswas. On 10th April, 1957 Lachhman Dass and others sold 8(sic)8 bighas 10 biswas in khewat No. 2, khatas Nos. 26 to 44 and 27 bighas 10 biswas in khewat No. 3, khatas Nos. 49 to 5i to Surjit Singh and others for Rs. 43,600/. The deed of sale was registered on 19th March, 1958. On 3rd May, 1958 the suit, out of which the appeal has arisen for possession by pre-emption, was instituted by the plaintiffs on the ground that, they were co-sharers of the land in dispute. On 15th May, 1959 the plaintiffs sold their entire holding in khewats Nos. 2 and 3 retaining comparatively a small area of 6 bighas 7 biswas, it being wholiy unproved in which khewat or khata this area happened to fall.

The suit was contested by the defendants who denied the superior rights of pre-emption of the plaintiffs and also took up other pleas which gave rise to the issues mentioned in the judgments of the Courts below. The trial Court, as stated before, awarded a decree lot possession of 11/12th of the area which had been purchased by the vendees on payment of Rs. 39,875 as sale price and Rs. 950 as proportionate costs of execution, stamp and registration. The lower appellate Court having affirmed the decree, the vendees have preferred the present appeal to this Court.

The first point that was raised in the Courts below and which has been strenuously pressed before us relates to the question whether the plaintiffs had a superior right of pie-emotion. It is common ground that out of the total area which has been acquired by the plaintiffs on 10th May, 1955 in khewat Nos. 2 and 3, khatas Nos. 26 to 44 and 49 to 54 respectively, they had disposed of most of that area and they remained owners of 6 bighas 7 bisuas only. Under section 15(b), fourthly, of the Punjab Pre-emption Act, 1-13, the plaintiffs had to establish that the sale was of a share cut of joint land or property winch had not been made by the co sharers jointly and that they were the other co sharers who had not joined in the sale It is well settled that this right had to subsist in the plaintiffs not only at the time when the sale sought to be pre-empted was effective but up to the date of the decree. It was not disputed nor has it been disputed before us that up to (sic) th May 1959 the plaintiffs were co sharers in the aforesaid khatas of khewats 2 and 3. What has been contended is that after the transfer of practically the entire area on that date, the plaintiffs ceased to be co-sharers who could pre-empt the sale relating to 926 bighas in khewats Nos. 2 and 3 as it has nowhere been proved in which khata or khewat this area had been left and in what manner the plaintiffs still remained co sharers so far as the suit land was concerned. It is pointed out that it is possible that the entire land which the plaintiffs owned in khewat No. 2 had been disposed of. In that event they could not any longer remain co-sharers in that khewat, khatas Nos. 6 to 44. A similar situation could be envisaged with regard to khewat No. 3, Rhatas Nos. 49 to 54. It was for the plaintiffs to establish in which khewat or khata the area of 6 bighas 7 biswas owned by them existed before they could succeed in establishing their rights as co-sharers. Mr. Baldev Singh, who appears for the plaintiff-respondents, admits that no documentary proof, which was available had been produced in that behalf. It is also clear that when Kartar Singh P.W. 1, the Patwari, gave evidence, this matter was not got clarified by him although he was re-examined by the plaintiffs with regard to the area which they had originally purchased on 10th May, 1955. Mr. Baldev Singh has relied on the statement of Mohan Singh, one of the plaintiffs, who stated that the plaintiffs were co-sharers in the joint khata, but in the absence of documentary evidence, which was available and which could have been produced, it is not possible to accept his vague statement with regard to the plaintiffs being co-sharers in the joint khata. The clear error into which the lower appellate Court fell was that it did not apply its mind to the situation which was created by the sale effected by the plaintiffs on 19th May, 1959 and the consequential effect on the rights of the plaintiffs as co-sharers after almost the entire land had been disposed of. It must, therefore, be held that at the time when the suit was decreed, the plaintiffs had failed to establish a right of pre-emption under section 15(b), fourthly, of the Pre-emption Act, the burden of which was clearly on them. Faced with this situation, Mr. Baldev Singh sought to sustain the decree of the Courts below on the reasoning that the plaintiffs being owners of 6 bighas 7 biswas in the estate were co-sharers in each khata in that estate. Reliance was placed on section 3(1) of the Punjab Land Revenue Act, 1887, according to which "estate" means any area -

(a) for which a separate record-of-rights has been made; or

(b) which has been separately assessed to land revenue, or would have been so assessed if the land revenue had not been released, compounded for or redeemed; or

(c) which the State Government may, by general rule or special order, declare to be an estate.

Section 3(3) defines "holding" as meaning a share or portion of an estate held by one land-owner or jointly by two or more land owners. In Ram Sarup Vs. Munshi and Others, , their Lordships of the Supreme Court have observed that an "estate" is a unit of assessment and there is a joint and several liability of persons owning land within the "estate" to pay the entire assessment due on the estate. Thus, though it is not the case of a co-sharer, it is somewhat akin to that of a co-sharer because of the joint liability for payment of land revenue. Mr. Baldev Singh says that, these observations go to show that the plaintiffs being owners of land within the estate should be regarded as co-sharers in the land in dispute. The observations, which were made, were in connection with the constitutional validity of section 15 (c), thirdly, of the Punjab Pre-emption Act as it existed at that time. Apparently they could be of no avail to the plaintiffs in the present case. It is futile to discuss or elaborate the connotation and meaning of the word ''co-sharer". It is not possible to see how by any stretch of reasoning each and every land-owner in the village which is an "estate" can be regarded as a co sharer of every parcel of land situate in that village no matter whether he has any share in that particular land or not. The contention raised by Mr. Baldev Singh is wholly devoid of force.

Mr. J.N. Seth, who appears for the vendees, has also contended that section 19-A of the Punjab Security of Land Tenures Act, 1953, would also stand in the way of any decree being granted in favour of the plaintiffs in respect of the suit land. The section was introduced by Punjab Act No. 4 of 1959. It did not have retrospective effect and therefore, the position after its enforcement alone had to be taken into account. As has already been found, the plaintiffs had only an area of 6 bighas 7 biswas of land in their village after 19th May, 1959. It is common ground that the amending Act No. 4 of 1959 was to be effective from 30th July, 1958. It did not, therefore, affect the position prior to its enforcement and after its enforcement the area left with the plaintiffs being only bighas 7 biswas, which was much less than the permissible limit, any decree in respect of the suit land could not offend against the provisions of that section.

No other point having been urged by the learned counsel for the parties, the appeal is allowed on the ground that the plaintiff had failed to prove any right in them of pre-emption under section 15(b), fourthly, of the Pre-empt on Act. In the circumstances, the parties are left to bear their own costs. The cross-objections must fail and are dismissed, there being no order as to costs.

H.R. Khanna, J.

I agree.