Tej Singh and Others vs Chand Ram and Another

Fateh Deep Singh, J.—Though both the Regular Second Appeals detailed and described above are an outcome of separate judgments and decrees but keeping in view that the litigation is between the same set of plaintiffs and defendants wherein similar questions of law and facts are involved, are thus being conveniently disposed off by this common judgment. The brief facts in RSA No. 3741 of 1987 (hereinafter referred to as ''the First Appeal'') are that the plaintiff Chand Ram now respondent instituted a suit against defendant-appellants Tej Singh, Hukam Singh, Pawan Kumar and Gandharv Sain, for possession by way of pre-emption claiming to be the co-sharer in khewat No. 121 alleging that one of the co-sharer Katar Singh had sold through registered sale deed dated 28.09.1984 land measuring 8 kanals 6 marlas, out of his share of 1/10 of total land measuring 83 kanals 3 marlas for a sum of Rs. 12,000/- to the defendants and hence the suit and further alleged that much earlier vide registered exchange deed dated 13.03.1964, he has exchanged his share of the land measuring 16 kanals 6 marlas with land of Dalip Singh, Randhir Singh to the same very extent and therefore has come to be the co-sharer with the defendants and by that score a preferential right of pre-emption. The defendants contested the claim denying that the plaintiff was the co-sharer and termed the suit as not maintainable and further claimed that plaintiff has full knowledge of this transaction and, therefore, was not entitled to any relief and which averments of the defendants was refuted in the replication by the plaintiff and following issues were framed:

Whether the plaintiff has superior right to pre-empt the sale of the suit land? OPP

Whether the vendee-defendants incurred expenses on account of stamp and registration? If so how much and to what effect? OPD

Whether the defendants are entitled to special costs? OPD

Relief.

In his evidence plaintiff examined himself as PW-1 reiterating his stand and examined PW-2 Plkhar, PW-3 Paul Singh and tendered documents Exhibits P1 to P6. On the other hand, defendants examined DW-1 Tej Singh, Karan Chand DW-2 and after tendering documents Exhibits D1 and D2 closed the evidence.

It is through judgment and decree dated 27.03.1987, the Court of learned Sub Judge 1st Class, Jhajjar decreed the suit of the plaintiff and which was assailed by the un-successful defendants before the First Appellate Court and through judgment and decree dated 26.08.1987, learned Additional District Judge-II, Rohtak similarly dismissed the appeal with costs and which findings have been assailed in this appeal before this Court.

Similarly, the facts leading to RSA No. 682 of 1989 (hereinafter referred to as ''the Second Appeal''), plaintiff Chand Ram had sought a decree for possession in exercise of his right of pre-emption in respect of land Killa No. 56/24/2/1 3 kanal 12 marlas, 59/4 8 kanals, 7/1 4 kanals 18 marlas, claiming that Chattar Singh, Phool Singh and Hawa Singh sons of Saroop Singh as well as Smt. Chander, daughter of Saroop Singh have sold their 1/2 share of land, out of Khewat No 125, khata No. 131 total measuring 16 kanal 10 marlas, situated at village Achhej for consideration of Rs. 12,000/- through registered sale deed dated 02.07.1986 when the actual sale consideration was of Rs. 25,000/- and, therefore, the plaintiff being joint co-sharer and the defendants being strangers, the plaintiff had preferential right of pre-emption and hence the suit.

Defendants in their stand similarly took the plea in their written statement that this land was sold for a total consideration of Rs. 25,000/- and not Rs. 12,000/-, which is the true market value of this land and denied that the plaintiff was co-sharer or had any preferential right of pre-emption. Plaintiff filed replication reiterating his stand leading to framing of following issues from their pleadings:

Whether the plaintiff has a superior right to preempt the sale in question? OPP

Whether the sale price was fixed in good faith and actually paid? OPD

3.3. If issue No. 2 is not proved as to what was the market value of the land in dispute? OPP

Whether the suit is barred by limitation? OPD

Whether the plaintiff is estopped by his own act and conduct from filing the suit? OPD

Whether the defendants have made any improvement over the land in dispute? If so, to what amount. OPD

Whether the suit is not maintainable in the present form? OPD

Relief.

The plaintiff in his evidence examined himself as PW-1 reiterating his stand and had tendered documents Exhibits P-1 to P-11 and similarly on behalf of defendants Tej Singh having testified as DW-1 sought corroboration from the depositions of Bhana Ram DW-2 and Hawa Singh DW-3 and has tendered document Ex. D1.

Learned Sub Judge, Ist Class, Jhajjar through judgment and decree dated 21.07.1988 decreed the suit of the plaintiff and against which an appeal was preferred before the learned District Judge, Rohtak who through judgment and decree dated 02.02.1989 similarly dismissed with costs the appeal of the appellants, who thus have preferred to assail the same before this Court.

In both these appeals, the grounds which have been assailed and impugned have been clearly spelled out. Keeping in view the similar nature of dispute, following substantial questions of law which are common to both the appeals were separately framed:

Whether a person who purchases a specific khasra number in a joint khewat is entitled to claim the status of a co-sharer in that khewat?

If a vendee improves his status by way of purchase during the pendency of the suit of pre-emption, whether he is entitled to take benefit of that improvement of the status in a suit of pre-emption filed by him.

After hearing the counsel for the appellants as well as the respondents at length, no doubt the Punjab Pre-emption Act, 1913 (in short ''the Act'') is a relic of feudalism but being a statutory enactment the right of pre-emption creates a clog on the right of the owner to alienate his property to a person of his own choice and by virtue of Section 4 of the Act a pre-emptor must have rights of pre-emption on three occasions i.e. date of sale, date of institution of suit and the date of decree maintaining superior right of preemption. Since it is the stand of the plaintiff that he is a co-sharer, thus by virtue of this, in the light of a Full Bench view of this Court in Bhartu Vs. Ram Sarup, every co-sharer is deemed to be the owner and in possession of every inch of the common land which is un-partitioned unless and until it is established that a co-sharer was in exclusive possession over a long period of time to which the other co-sharers have acquiescenced and which proposition of law has not been controverted by any of the counsel representing the parties. The irrefutable documentary evidence by way of revenue record proved in these two cases, clearly goes to establish that the land subject matter of this litigation is an un-partitioned co-sharer property. Not only the previous findings in Civil Suit No. 633 dated 28.09.1985, out of which the First Appeal has arisen, as well as the copies of mutations Exhibits P2 to P4 and jamabandies Exhibits P3 and D2 established the jointness of this land whereas in the First Appeal, appellants have purchased this joint property from Katar Singh, one of the co-sharers of the plaintiff and plaintiff Chand Ram through registered exchange deed dated 16.03.1964 had come to be the owner of this joint co-sharer property, which has been proved on the record through mutation Exhibit P-5. In the second appeal, the jamabandi Exhibit PJ, the plaintiff has shown to be a co-sharer, which is further corroborated by the revenue record Exhibits P6 to P9 and P11 and to the very query of the Court, learned counsel for the appellants could not enliven or substantiate his submissions regarding the fact that the plaintiff is not a co-sharer in these properties and it is well enshrined position of law laid down in Bhartu''s case (supra) that in cases of sale by a co-sharer of a specific khasra number, out of the joint co-sharer, un-divided property means and is construed as a sale of his share and not a specific khasra number and, therefore, possession of joint property of one co-owner is in the eyes of law, possession of other co-owners and merely because one of the co-sharers is in occupation of a larger portion does not mean or can be construed as tantamounting to the ouster of the other co-sharers and there is nothing shown by the learned counsel for the appellants in his submissions that the possession of the appellants was hostile to the knowledge of the plaintiff and the ratios cited on behalf of the appellants in cases of Shyam Sunder and Another Vs. Ram Kumar and Another, and Inder Singh and Others Vs. Om Parkash and Others, , have sought to be controverted by the respondents'' counsel, who have cited ratios in cases of Boodireddy Chandraiah and Others Vs. Arigela Laxmi and Another, , Shri Audh Behari Singh Vs. Gajadhar Jaipuria and Others, , Atam Prakash Vs. State of Haryana and Others, , Bhikha Ram Vs. Ram Sarup and others, Krishna Minor through his Father and Guardian and Others Vs. State of Haryana and Others, Shyam Sunder and Another Vs. Ram Kumar and Another, and Jai Singh and Others Vs. Gurmej Singh,

The Hon''ble Supreme Court in the case of Sham Sunder''s (supra) relied upon by the two sides has very well laid down that the main object behind the right of pre-emption is to prevent intrusion of stranger into the family holding or property and, therefore, vest in the co-sharer a right to substitute himself in place of a stranger in respect of portion of the property so purchased by the stranger and, therefore, hence held that though right of pre-emption may be characterised as feudal and out-moded but is held to be mandatory and not mere discretionary and the Court has no option to grant decree of preemption where there is a sale of a property by another co-sharer.

No doubt under the provision of Section 9 of the Act, the right of preemption does not exist in support of any sale made by or to government or by or to any local authority or to any company under the provisions of the Land Acquisition Act or in respect of any sale duly sanctioned by the Deputy Commissioner and further under the provisions of Section 10, in the case of a sale by joint-owners, no party to such a sale can be permitted a right to claim a right of pre-emption and no doubt with the amendment to Section 15 of the Act, Right of Pre-emption has rested in the tenant w.e.f. 1995. However, the present matters are prior to this amendment.

In the present dispute, though by virtue of the stand of the appellants, they have denied any such sale, however, as such come in the own testimonies of the defendants themselves, it clearly ensues that alienation has certainly taken place and there is nothing suggestive that the plaintiff was ever informed of these likely transactions and further more, in Krishna''s case (supra), it has further been held that where the stranger acquires a co-sharer interest, a right of pre-emption crystallizes in his favour as well and thereby becomes a co-owner with other co-sharers. The ratio laid down in Inderjit Singh''s case (supra) relied upon by the appellants does not come to their aid in view of the ratio of the Hon''ble Supreme Court of India and factual disparity. Learned trial Court in both the suits have correctly appreciated the evidence of the parties and have drawn judicious conclusions, which need not be disturbed. Thus, both the appeals being hopelessly without any merit in the light of these concurrent findings of the Courts below, are dismissed.