Surjit Singh vs Bikhu Ram

G.R. Majithia, J.

The unsuccessful plaintiff has come up in second appeal against the judgment and decree of the first appellate Court reversing on appeal those of the trial Court and dismissing his suit for possession by preemption.

The facts : Defendant No. 2, (respondent No. 2 in this appeal) sold land measuring 1 Kanal being 5/6th share of the land measuring 1 Kanal 4 Marlas comprised in Khewat No. 312 min. Khasra No. 49/8 (14) situate in village Ram Saran Majra, Tehsil Thanesar, District Kurukshetra as entered in Jamabandi for the year 198485, in favour of defendant No. 1 (respondent No. 1 in this appeal), vide registered sale deed dated January 1, 1986, for a consideration of Rs. 5,000/. The plaintiffappellant sought to preempt the same on the ground that he was a cosharer in the Khewat. The first appellate Court on appraisal of the evidence, found that the plaintiff had purchased land comprised in Khasra No. 97, Khewat No. 245, Khatauni No. 352 as entered in Jamabandi for the year 198485 prior to the sale made in favour of defendant No. 1. But being a purchaser of land comprised in Khasra No. 87, he will not become a cosharer in the land comprised in Khasra No. 49, Killa No. 8. Perusal of Jamabandi for the year 198485, Ex. P.1, indicates that the vendor was the exclusive owner of the land comprised in Khasra No. 49, Killa No. 8 measuring 1 Kanal being 5/6th share of the land measuring 1 kanal 4 marlas. Defendant No. 2 was also the owner of land comprised in Khasra No. 87, Khatauni No. 351 and Khewat No. 245. A purchaser of a specific field number forming part of specific Khatauni number and Khewat will not become a cosharer in other land forming part of another Khewat. It will be useful to reproduce the relevant provisions of Section 15 of the Punjab Preemption Act, 1913 :

"15. (1) The right of preemption in respect of agricultural land and village immovable property shall vest

(a) ........;

(b) where the sale is of a share out of joint land or property and is not made by all the cosharers jointly,

FIRST, SECONDLY, and THIRDLY .......................,

FOURTHLY, in the other cosharers;"

In order to bring the claim within the four comers of the statute, the plaintiff has to establish, firstly, that the sale was of a share out of joint land or property and, secondly, the sale is not made by all the cosharers jointly. If both the requirements are fulfilled, a nonselling cosharer has a right to preempt the sale. In the instant case, the sale was by a sole owner i.e. defendant No. 2. She had sold specific field number to defendant No. 1 as is evidenced by Jamabandi Ex. P.1. She had sold part of this land measuring 1 Kanal to defendant No. 1 and the remaining land was still her property. The preemptor would have been a cosharer in this field number if he had purchased a part of this Khasra number prior to the sale in favour of defendant No. 1. A purchaser of a specific Kills number in a specified rectangle and Khatauni Khewat will not become a cosharer in other rectangles forming part of separate Khataunis Khewat. No fault can be found with the conclusions arrived at by the first appellate Court.

For the reasons recorded above, the appeal is devoid of any merit and is dismissed with no order as to costs.