Partly allowed

Ram Singh v. Hari Singh etc.

Punjab & Haryana HC20 Dec 2024RSA/1273/1993

Case brief

AI extract

What is this about?

This single-judge High Court appeal addressed a pre-emption suit under the Punjab Pre-emption Act. The court held the suit for pre-emption by Hari Singh was bad in law because the vendor had already sold a share to the appellants via a prior Gift deed, making them co-sharers with equal standing. Additionally, the suit was dismissed for being bad for non-joinder of the vendor, who was a necessary p

What did the court decide?

The appeal was accepted; the impugned judgments and decrees were set aside, and the suit for pre-emption was dismissed.

Ram Singh Vs Hari Singh etc. — Succession and Inheritance | Punjab & Haryana HC (2024)

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Sarita Rani 2024.12.20 15:02 I attest to the accuracy of this document/order

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RSA No.1273 of 1993 (O&M)

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2024:PHHC: 171700

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as per details given in the plaint to defendant Nos.1 to 5 - Hari Singh etc., all sons of Musadi Lal by virtue of registered sale deed dated 21.05.1990 (Ex.D5) for considera"on of ₹1,20,000/-. Plain"ff – Hari Singh S/o Kalu Ram (respondent No.1 herein), claiming to be co-sharer in the same Khewat filed the suit seeking to pre-empt the sale. The suit was contested by the vendeesdefendants (appellants herein) on the ground, amongst others, that plain"ff was not the co-sharer in the Khewat and so, he did not have the right to preempt the sale.

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Herein itself, it is important to no"ce that vendee-defendant No.6 - Smt. Misri was given up by the plain"ff by way of the statement dated 11.12.1990 made by his counsel.

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5.1 Necessary issues were framed. Evidence produced by the par"es was taken on record.

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5.2 During pendency of the suit, plain"ff sought to amend the plaint so as to incorporate that par""on order dated 06.08.1991 passed by the Assistant Collector 1^st Grade, Mahendergarh was not binding upon his rights. The said applica"on was dismissed on 04.06.1992.

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5.3 Another applica"on was moved by the contes"ng defendants under Order 6 Rule 17 CPC to amend the wri9en statement by submi:ng that land comprised in Khewat No.127 Khatouni Nos.197 to 201 had earlier been alienated by vendee – Smt. Misri to defendant Nos.1 to 5 by way of Gi; Deed No.842 dated 18.04.1990, which fact was material for the decision of the case. The trial Court vide order dated 21.09.1992 dismissed the applica"on on the ground that allowing of this applica"on will cause delay in disposal of the case. However, Gi; Deed dated 18.04.1990 was permi9ed to be placed on record with the rider that relevancy of this document shall be considered at the "me of arguments.

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5.4 A;er hearing both the sides, the trial Court vide judgment dated 21.09.1992 decreed the suit for pre-emp"on in favour of plain"ff – Hari Singh

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S/o Kalu Ram. As earlier stated that the appeal filed by the defendantsvendees was dismissed by the First Appellate Court.

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6.1 Assailing the aforesaid findings, it is contended by learned counsel for the appellants that by virtue of Gi; Deed dated 18.04.1990 executed by Smt. Misri in favour of the appellants-defendant Nos.1 to 5, these defendants had become co-sharers in the same Khewat No.127, prior to 21.05.1990, i.e. the date of execu"ng the sale deed by Smt. Misri in favour of these defendants. As such, defendants were already co-sharers in same Khewat and therefore, plain"ff did not have the right to pre-empt the sale against another co-sharer.

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6.2 It is further contended by learned counsel that in order to establish his right to pre-empt, it is required for the pre-emptor to establish that he had such right to pre-empt the impugned sale not only on the date of sale, but also on the date of filing of the suit and then on the date of passing of the decree at the first instance. However, during pendency of the suit, the suit land was par""oned by way of order dated 06.08.1991 passed by the Assistant Collector 1^st Grade and therefore, the status of the plain"ff as cosharer had come to an end and as such, he no longer had the right to preempt the sale.

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6.3 It is also the conten"on of learned counsel that during the pendency of the suit, plain"ff had suffered a decree regarding his share in the same Khewat in favour of his wife Smt. Kiran Devi vide judgment and decree dated 18.07.1992 (Exs. D6 and D7) and therefore, plain"ff had lost his status as a co-sharer and for this reason also, the suit for pre-emp"on could not have been decreed.

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6.4 Last submission of Ld. counsel is that vendor-defendant – Smt. Misri, having been given up by the plain"ff, therefore, no decree for preemp"on could have been passed, as vendor is a necessary party to be impleaded.

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RSA No.1273 of 1993 (O&M)

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6.5 With these submissions, prayer is made for se:ng aside the judgments and decrees passed by the Courts below and to dismiss the suit.

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Refu"ng the aforesaid conten"ons, it is contended by learned counsel for respondent No.1 - plain"ff that order dated 06.08.1991 of Assistant Collector 1^st Grade regarding par""oning of the suit land was set aside by the Collector, Narnaul vide order dated 31.07.1992 (Ex.P6) and as such, appellants cannot draw any advantage of the par""on order dated 06.08.1991. It is further contended that judgment and decree dated 18.07.1992 in favour of Smt. Kiran Devi was set aside by another judgment and decree dated 07.09.1992 and thus, plain"ff again became co-owner in the same Khewat. Learned counsel contends further that no plea was raised by the appellants-defendants that they were co-sharers in the suit property on account of any Gi; Deed dated 18.04.1992 and as such, the Gi; Deed relied by the appellants has been rightly ignored by the Courts below. With these submissions, prayer is made for dismissal of the appeal.

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I have considered submissions of both the sides and have appraised the record carefully.

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The right of pre-emp"on means the right of a person to acquire agriculture land or village immovable property or urban immovable property in preference to other persons. Sec"on 15 of the Punjab Pre-emp"on Act deals with the ves"ng of right of pre-emp"on in favour of certain categories of persons. One such category is co-sharer. However, a co-sharer has no longer the right to pre-empt the sale in view of Haryana Amendment Act, 1995. At the same "me, the said amendment is prospec"ve in nature and not retrospec"ve. The Full Bench of Hon’ble Supreme Court in “ Shyam Sunder and another v. Ram Kumar and another”, AIR 2001 (Supreme Court) 2472 , held has under:-

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“11. An analysis of the aforesaid decisions referred to in first category of decisions, the legal principles that emerges are these:

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The pre-emptor must have the right to pre-empt on the date of sale, on the date of filing of the suit and on the date of passing of the decree by the Court of the first instance only.

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RSA No.1273 of 1993 (O&M)

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The pre-emptor who claims the right to pre-empt the sale on the date of the sale must prove that such right con"nued to subsist "ll the passing of the decree of the first court. If the claimant loses that right or a vendee improves his right equal or above the right of the claimant before the adjudica"on of suit, the suit for pre-emp"on must fail.

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A pre-emptor who has a right to pre-empt a sale on the date of ins"tu"on of the suit and on the date of passing of decree, the loss of such right subsequent to the decree of the first Court would not affect his right or maintainability of the suit for pre-emp"on.

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A pre-emptor who a;er proving his right on the date of sale, on the date of filing the suit and on the date of passing of the decree by the first court, has obtained a decree for pre-emp"on by the Court of first instance, such right cannot be taken away by subsequent legisla"on during pendency of the appeal filed against the decree unless such legisla"on has retrospec"ve opera"on.”

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It is, thus, clear that a pre-emptor is required to establish that he had the right to pre-empt the sale not only on the date of sale, but also on the date of filing of the suit and "ll the date of passing of decree by the first instance. In case, the claimant-plain"ff loses the right; or vendee improves his right equally or above the right of claimant before adjudica"on of the suit, the suit for pre-emp"on would fail.

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At the same "me, it is important to no"ce that right of preemp"on is a very weak right and can be defeated by all legi"mate means. Way back in 1958, it has been held by the Hon’ble Supreme Court in “ Bishan Singh & Others v. Khazan Singh & Another”, AIR 1958 SC 838 as under:-

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“11..... The right of pre-emp"on is not a right to the thing sold but a right to the ofer of a thing about to be sold. This right is called the f primary or inherent right. (2) The pre- emptor has a secondary right or a remedial right to follow the thing sold. (3) It is a right of subs"tu"on but not of re-purchase 1. e., the pre-emptor takes the en"re bargain and steps into the shoes of the original vendee. (4) It is a right to acquire the whole of the property sold and not a share of the property sold. (5) Preference being the essence of the right, the plain"f f must have a superior right to that of the vendee or the person subs"tuted in his place. (6) The right being a very weak right,

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it can be defeated by all legi"mate methods, such as the vendee allowing the claimant of a superior or equal right being subs"tuted in his place."

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The aforesaid posi"on has been reiterated by the Hon’ble Supreme Court in “Barasat Eye Hospital v. Kaustabh Mondal” (2019) 19 SCC 767; “Raghunath (Dead) by LRs v. Radha Mohan (Dead) Through LRs. And Others (2021) 12 SCC 501 and then “Jhabbar Singh (Deceased) Through Legal Heirs & Ors. v. Jagtar Singh S/o Darshan Singh”, AIR (Supreme Court) 2074.

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In the present case, the evidence on record establishes that on the date of execu"on of the sale deed dated 21.05.1990 (Ex.D5) by vendor – Smt. Misri, plain"ff – Hari Ram S/o Kalu Ram was a co-sharer in the same Khewat. Said fact is clear from muta"on (Ex.P8) to be read with muta"on (Ex.P9) revealing that Kalu Ram, the father of the plain"ff had purchased the land in the same Khewat and on the death of Kalu Ram, plain"ff & others had inherited that right. Besides, the defendants-appellants had moved an applica"on seeking par""on of the land comprising Khewat No.127, wherein plain"ff- Hari Singh S/o Kalu Ram was also impleaded to be one of the cosharers. Thus, as per the own admission of the defendants, plain"ff was a cosharer in the same Khewat. Thus, it is established that on the date of sale deed dated 21.05.1990 (Ex.D5) sought to be pre-empted, as well as on the date of filing of the suit, i.e. 23.08.1990, plain"ff was a co-sharer in the same Khewat.

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However, it is very important to no"ce that even the plain"ff was a co-sharer in the same Khewat. No doubt, it is true that defendantsappellants did not plead in the wri9en statement that they were also cosharers in the same Khewat, but they moved an applica"on under Order VI Rule 17 CPC for amendment of the wri9en statement in this regard. Though, their applica"on was declined by the trial Court, but they were allowed to place on record the Gi; Deed dated 18.04.1990. A perusal of the registered Gi; Deed bearing Vasika No.74 dated 18.04.1990 would reveal that Smt. Misri [vendor of sale deed Ex.D5] had alienated the land to the extent of

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RSA No.1273 of 1993 (O&M)

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112/1742 share, i.e. 05 kanals 12 marlas out of the land comprised in Khewat No.127 Khatouni Nos.197 to 201 as per jamabandi for the year 1985-86 in favour of Hari Singh, Ram Singh, Naresh Kumar, Dinesh Kumar and Manoj Kumar, all sons of Musadi Lal, i.e. appellants-defendants of this case. Once the trial Court had allowed the defendants to produce on file the said Gi; Deed, it was required for the Courts below to consider the effect thereof. However, the Courts below failed to do so.

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As it is evident on perusal of the Gi; Deed dated 18.04.1990 that defendants had also become co-sharers in Khewat No.127 on 18.04.1990, i.e. prior to sale deed dated 21.05.1990, therefore, plain"ff did not have the right to pre-empt the sale against another co-sharer i.e. a person of equal status.

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Apart from above, the suit was filed on 23.08.1990, wherein vendor – Smt. Misri was impleaded as defendant No.6. However, by way of the statement made on 11.12.1990, plain"ff gave up said defendant No.6 as unnecessary party. It is required to be seen as to what is the effect of nonjoining of the vendor-defendant in a suit for pre-emp"on.

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The said issue has been considered by the Hon’ble Supreme Court in Jhabbar Singh’s case (supra) and it has been held as under:-

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“13. As held by this Court in U.P. Awas Evam Vikas Parishad v. Gyan

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Devi AIR 1995 SC 724 , necessary party is one without whom no order can be made effec"vely, and a proper party is one in whose absence an effec"ve order can be made but whose presence is necessary for a complete and final decision on the ques"on involved in the proceedings. When a right to pre- empt, the sale was claimed by the plain"ff Jagtar Singh as a co-sharer in the lands along with the owner Jit Singh, alleging that the mandatory provisions contained in Sec"on 19 i.e., for giving no"ce to the pre-emptor, was not complied with by the owner or seller Jit Singh, his presence as the party defendant was desirable along with the other defendants Jhabbar Singh and Others, to effec"vely and finally decide the disputes between the par"es. Though, Order 1 Rule 9 states that no suit shall be defeated by reasons of the misjoinder or non-joinder of par"es, care must be

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taken by the court to ensure that all the par"es, be it the plain"ff or the defendant, whose presence is necessary for complete and final adjudica"on on the issues involved in the suit, are before the court. That is the reason why the courts are empowered to strike out or add par"es, at any stage of the proceedings as per Order 1. Rule 10. C.P.C.”

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It is clear from the above-said legal posi"on explained by Hon’ble Supreme Court that when a right to pre-empt the sale is claimed by the plain"ff, the presence of the owner as a party defendant is desirable alongwith other defendants to effec"vely and finally decide the dispute between the par"es. Although, as per order I Rule 9 CPC, no suit is to be defeated by reason of mis-joinder or non-joinder of the par"es, but it is required for the Court to ensure that all the par"es, be it the plain"ff or the defendant, whose presence is necessary for complete and final adjudica"on on the issues involved in the suit are before the Court.

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In the present case, it was specifically pleaded by the plain"ff – pre-emptor that prior to sale, the vendor-defendant N: 6 had not given him any prior no"ce. S"ll, the vendor-defendant – Smt. Misri had been given up by the plain"ff. As such, the suit becomes bad for non-joinder of the necessary party, as in the absence of the vendor, the suit cannot be effec"vely and finally decided.

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As far as the conten"on of learned counsel for the appellants regarding the par""on order dated 06.08.1991 passed by the Assistant Collector 1^st Grade, Mahendergarh, is concerned, it is conceded by learned counsel for the appellants that the said order was set aside by the Collector, Narnaul vide order dated 31.07.1992 (Ex.P6).

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On account of the en"re discussion as above par"cularly the fact that the appellants-defendants were also the co-sharers in the same Khewat by virtue of Gi; Deed dt. 18.4.1990, from which the suit land was sold prior to the sale deed (Ex.D5) sought to be pre-empted, it is held that the plain"ff did not have the right to pre-empt the sale against other co-sharers. It is also

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held that suit is bad for non-joinder of vendor-defendant – Smt. Misri, as in her absence the suit cannot be effec"vely and finally decided.

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Consequently, the present appeal is hereby accepted. The impugned judgments and decrees as passed by the Courts below are hereby set aside. The suit filed by the contes"ng respondent-plain"ff for preemp"on is hereby dismissed. The decree sheet be prepared accordingly.

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December 20, 2024 (DEEPAK GUPTA) Sarita JUDGE Whether speaking/reasoned? Yes Whether reportable? Yes

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Ram Singh v. Hari Singh etc.

Case brief

What is this about?

What did the court decide?

Ram Singh v. Hari Singh etc.

Case brief

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