Allowed

Sanjay Kumar v. Chandgi Ram

Punjab & Haryana HC1 Apr 2026RSA/2800/1996

Case brief

AI extract

What is this about?

Vendee-defendant appealed against decrees in a co-sharer's suit for possession by way of pre-emption. The High Court held the appeal through the mother competent, rejected the plea of loss of pre-emption right by amendment, but dismissed the suit as fatally defective because the vendor, a necessary party, had been given up.

What the court decided

AI extract

Sanjay Kumar Vs Chandgi Ram — Property and Title | Punjab & Haryana HC (2026)

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RSA No.2800 of 1996

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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RSA No. 2800 of 1996(O&M)

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Sanjay Kumar (Minor)

… Appellant

Versus

Chandgi Ram

…Respond e nt

Reserved on: 23.03.2026 Pronounced on: 01.04.2026 Pronounced fully/ operative part: Fully

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CORAM: HON’BLE MR. JUSTICE DEEPAK GUPTA

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Argued by:- M r . D.S. Nirban, Advocate

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Fo r the appellant.

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M r . R.S. Sangwan, Advocate Fo r the respondent.

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DEEPAK GUPTA, J.

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Th e present Regular Second Ap p eal has been preferred by the vendee–defen d ant, Sanjay Kumar (minor), assailing the judgments and decr e es passed by the Courts below, whereby the s u it for possession by way of p r e- emption instit u ted by the plaintiff–responde n t Chandgi Ram, was decreed by the learned t r ial Court vide judgment dat e d 12.06.1993, and the app e al preferred by t h e defendant was dismissed by the learned first Appellate Co u rt on 26.08.1996.

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Facts : The factual matrix is lar g ely undisputed. The defenda n t– appellant, who was a minor at the relevant t i me, purchased land measurin g 7 kanal 12 marl a by way of a registered sale deed dated 08.06.1989 for a consideration o f ₹34,000/-. The plaintiff–resp o ndent, claiming to be a co-sha r er in the suit pro p erty, instituted a suit for pre-e m ption on 06.06.1990 on the plea that no prior n otice of the intended sale had been served upon him by the

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vendor. JITEN SHARMA 2026.04.01 17:55 I attest to the accuracy and integrity of this document

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RSA No.2800 of 1996

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Ini t ially, the minor defendant wa s proceeded against ex parte and an ex parte de c ree dated 23.03.1991 came t o be passed. The said decree w a s, however, set a s ide in appeal and the matter w as remanded. Upon remand, S h ri Satish Kumar, A dvocate, was appointed as g u ardian ad litem to represent the minor defenda n t by the trial court.

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Th e minor defendant, through his Court-appointed guardi a n, contested the s uit by raising preliminary obj e ctions and denying the plainti f f’s alleged superior right of pre-emption. He also claimed reimbursement of sta m p and registration charges along with ₹2,000 as improvement expenses, and sought dismiss a l of the suit.

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Findings of Trial Court : Upon appreciation of the evidence led by the parties, th e learned trial Court decreed th e suit on 12.06.1993, holding t h at the plaintiff, being a co-sharer, had a superior r ight of pre-emption.

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6.1 Findings of Appellate Court : Agg r ieved against the judgment of the trial Court, the defendant preferred an appeal through his mother, Smt. Brah m a Devi, instead o f the Court-appointed guardian.

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6.2 Applications were moved for pe r mission to prosecute the app e al through the m o ther, and for removal of the guardian ad litem. Both applicati o ns were dismisse d by the learned first Appellate Court. The learned first Appell a te Court held that in view of Order 32 Rule 3(5) C P C, the guardian appointed by the trial Court co n tinued to represent the min o r throughout all stages of the proceedings a n d, therefore, the appeal file d through the mother was n ot maintainable.

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6.3 It w as further observed that by v i rtue of the Haryana Amendm e nt to Section 15 o f the Punjab Pre-emption Act, 1 9 13, the plaintiff had lost the ri g ht of pre-emptio n during pendency of the app e al. Nevertheless, the appeal w as dismissed solel y on the ground of non-maintai n ability.

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RSA No.2800 of 1996

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Ag a inst the aforesaid judgments o f the Courts below, the pres e nt appeal has been filed by the vendee-defenda n t Sanjay (minor) through mot h er Smt. Brahma D evi.

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Appellant’s Contentions : (i) The appellant contends that the first Appellate Court erred in holding the appeal filed through the mother as n ot maintainable. It is argued that the mother, being a natural guardian, is competent to represent the minor, as recogni z ed in Githa Hariharan v. Reserve Bank of India, AIR 1999 SC 1149, and Jijabai Vithalrao Gajre v. Pathankhan & Ors., 1970 (2) SCC 717 .

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(ii) It is further submitted that sinc e the first Appellate Court itself observed that the plaintiff had lost the right of pre-emption due to the statut o ry amendment, a n d the plaintiff did not challen g e that finding, the suit ought to have been dis m issed.

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(iii) It i s contended further that since t he vendor was initially impleaded but later given up, the plaintiff failed to prove absence of notice of the intended sale, and there f ore, the suit is liable to be dis m issed on this ground, relying o n Jhabbar Singh (deceased) through legal heirs and others v. Jagtar Singh (AIR 2023 SC 2074).

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Respondent’s Contentions : (i)Th e respondent argues that un d er Order 32 Rule 3 (5) CPC, the Court-appointed guardian continues throughout the proceedings unless formally removed, and since no such removal took place, the appeal filed thr o ugh the mother was not maintainable.

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(ii) It is further contended that th e finding regarding loss of p r e- emption right i s incorrect in view of Shyam Sunder & Anr. v. Ram Kumar & Anr. 2001 (8) SCC 24 , as the right is required to subsist only till the decree of the t r ial Court.

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(iii) La s tly, it is submitted that ev e n without cross-objections, the respondent ca n challenge adverse findings u n der Order 41 Rule 33 CPC, and therefore, no i n terference with the decree is warranted.

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RSA No.2800 of 1996

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Substantial Questions of Law: The following substantial questions of law arise for consideration:

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(i) Whether the appeal filed on behalf of t he minor defendant through h is mother was m a intainable in law?

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(ii) Whether the plaintiff–respondent lost t h e right of pre-emption in view of the Haryana A m endment to Section 15 of the Punjab Pre-emption Act during pendency of th e appeal?

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(iii) Whether respondent can be allowed to challenge adverse finding agai n st him without filing appeal or cross-objections?

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(iv) Whether the suit is vitiated on accou n t of non-joinder of a necess a ry party, namely t h e vendor?

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Consideration by this Court :

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Re: Maintainability of Appeal : O rder 32 Rule 3(5) CPC postula t es that a guardia n appointed for a minor shall c o ntinue to represent the minor in all proceeding s arising out of the suit unles s his appointment is terminat e d. However, the provision cannot be construed in isolation.

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A p erusal of the scheme of Orde r 32 CPC makes it evident that its primary object is to safeguard the interests of a minor, which remains the paramount co n sideration for the Court at all stages of the proceedings. The procedural pr o visions are thus required to b e interpreted in a manner t h at advances, and n ot defeats, the cause of the mi n or.

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In the present case, the learn e d first Appellate Court, despite noticing that t h e plaintiff had lost the right o f pre-emption, failed to adopt an approach consistent with the welfare of the m inor defendant. It is an admitted position on rec o rd that Shri Satish Kumar, Adv o cate, who had been appointed as the Court guar d ian by the trial Court, did no t effectively represent the min o r. Not only was no evidence led on behalf of th e minor before the trial Court, b ut even at the a p pellate stage, the said guar d ian failed to take any steps to challenge the decree. JITEN SHARMA 2026.04.01 17:55 I attest to the accuracy and integrity of this document Page N: 4 of 9 Pag e s

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RSA No.2800 of 1996

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In these circumstances, when t he appellant moved a specific application se e king permission to prosecute the appeal through his moth e r, coupled with a n application for removal of the existing Court guardian and appointment o f the mother as guardian, the learned first Appellate Court w as duty-bound to consider the same in the light of the minor’s best interest. The rejection of th e se applications, without due r e gard to the failure of the existing guardian and t h e need to protect the minor’s rights, renders the approach of the first Appellate Court not only erroneous but also perverse and leg a lly unsustainable.

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Th e issue is not res integra. The Full Bench of the Allahabad High Court in Raj Behari Lal & Ors. v. Dr. Mahabir Prasad & Ors., AIR 1956 All 310 , while interpre t ing Order 32 Rule 3(5) CPC, held that although ordinarily an appeal on beh a lf of a minor is to be filed th r ough the guardian on record, an appeal filed by another person can be treated a s competent, if it is accompanied by an applicati o n seeking removal of the existi n g guardian and appointment o f a new guardian, s ubject to approval of the Court .

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Th u s, the legal position that em e rges is that while a guardian ad litem, once appointed, continues to represent the minor throughout the lis unless removed, the Court retains the po w er to substitute such guardian whenever circ u mstances so warrant. The pr o cedural requirement cannot be applied rigidly s o as to prejudice the interest o f the minor.

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Fu r ther, in Kankali Vava of Anchuthayyil v. Nelayudhan Soman of Rantuthayyil House, AIR 1961 Ker 208 , it has b een held that where the guardian ad litem fails t o act and another person files a n appeal on behalf of the min o r, the removal of the guardian can, in appropri a te cases, be inferred even in the absence of a fo r mal order.

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Applying the aforesaid principles t o the facts of the present case , it is evident that t he Court guardian failed to dis c harge his duties and did not take any steps to protect the interest of the minor defendant, including the filing of an appeal. In s u ch a situation, the learned firs t Appellate Court was not justified

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RSA No.2800 of 1996

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in rejecting th e application filed by the appellant through his mother seeking substitution of t he guardian.

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Ac c ordingly, the order of the first Appellate Court rejecting the s a id applications is s et aside, and it is held that th e appeal filed through the mot h er of the minor d e fendant was competent and m a intainable.

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Re: Effect of Amendment to Section 15 : The learned first Appell a te Court further e r red in holding that the plaintif f had lost the right of pre-emption due to the Har y ana Amendment to Section 15 o f the Punjab Pre-emption Act.

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Th e issue stands conclusively settled by the judgment of the Hon’ble Supre m e Court in Shyam Sunder & Anr. v. Ram Kumar & Anr. 2001(8) SCC 24, wherei n it has been held that a pre-e m ptor must establish his right o n the date of sal e , on the date of institution of t h e suit and on the date of passing of the decree b y the trial Court. It has furthe r been held that loss of such ri g ht subsequent to t he decree of the trial Court do e s not affect the decree unless the amendment is r etrospective.

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In the present case, the sale t o ok place in 1989, the suit w as instituted in 1 9 90 and decreed in 1993, wh e reas the amendment came i n to force in 1995 a n d is admittedly prospective.

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Consequently, the right of the p laintiff stood crystallized on the date of decre e of the trial Court and could not have been defeated during pendency of th e appeal.

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Re : Challenge to adverse finding a gainst respondent without app e al or cross-object i ons : The contention raised o n behalf of the appellant that the respondent–pl a intiff is precluded from challenging the adverse finding of the first Appellate C ourt, to the effect that he had lost the right of pre-emption, f or want of cross-objections or a separate appeal, i s devoid of merit.

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Or d er 41 Rule 33 CPC confers wi d e discretionary powers upon the Appellate Cour t to pass any decree or make any order, which ought to have been passed, a n d such power can be exercise d notwithstanding that the app e al JITEN SHARMA 2026.04.01 17:55 I attest to the accuracy and integrity of this document Page N: 6 of 9 Pag e s

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RSA No.2800 of 1996

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is confined to a part of the decree. The provi s ion further enables the Appell a te Court to gran t appropriate relief in favour of any of the parties, including respondents, e v en in the absence of any appeal or cross-objections by them.

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Th e object of the provision is to enable the Court to do compl e te justice betwee n the parties and to avoid mult i plicity of proceedings. The po w er is not circumscribed by procedural technicalities and can be invoked where v er the circumstan c es of the case so warrant.

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In the present case, once the appeal was preferred by the defendant, the entire matter became open before the Appellate Court. The respondent–pl a intiff was, therefore, well within his right to support the decree and to assail a n y adverse finding recorded against him, even without filing cro s s- objections.

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Ac c ordingly, the objection raised by the learned counsel for the appellant in thi s regard is rejected.

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Re: Non-joinder of Necessary Party : However, a more fundamen t al issue arises in the present case, which goes to the root of the matter. The plaintiff, in his plaint, specifically pleaded that no prior notice of the sale had been given by t he vendor. Despite this, the v e ndor, though initially implead e d, was subsequently given up by the plaintiff. This assumes significance in view of the specific plea taken by the plaintiff that th e sale deed had been executed by the vendor wit h out serving any prior notice up o n him, as required under law.

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In such circumstances, the prese n ce of the vendor as a defend a nt was indispens a ble for proper adjudication o f the controversy. The question whether notic e was given or not, which forms the very foundation of the plaintiff’s claim for pre-emption, could not ha v e been effectively determined in the absence of the vendor. Therefore, the ac t of giving up the vendor rend e rs the suit funda m entally defective.

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It is well settled that the right of p re-emption is a weak right an d is to be strictly c o nstrued. The Hon’ble Supreme Court in Bishan Singh and others

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RSA No.2800 of 1996

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v. Khazan Singh and another, AIR 1958 SC 838 , has authoritatively held that the right of pre-e m ption is not a right to th e property itself but a right of substitution, a n d being a weak right, it can be defeated by all legitimate mea n s. Consequently, the plaintiff is required to strictly establish all conditi o ns precedent to s u stain such a claim.

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Th e effect of non-joinder of the v e ndor in a suit for pre-emption h as also been co n sidered by the Hon’ble Su p reme Court in Jhabbar Singh (deceased) through LRs & Ors. v. Jagtar Singh, AIR 2023 SC 2074. It has been held that a necessary party is one without w hom no effective order can be passed, and in cases where compliance with statutory requirements, such as notice by the vendor, is in issue, the presence of the vendor becomes essen t ial for complete a n d final adjudication of the disp u te.

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Th o ugh Order 1 Rule 9 CPC p r ovides that a suit shall not be defeated by re a son of non-joinder of parties, the said principle does not ap p ly where the no n -joinder pertains to a necess a ry party. The Court is under an obligation to ensure that all parties whose p resence is essential for effective adjudication ar e before it, and this power is reinforced by Order 1 Rule 10 CPC .

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In t he present case, despite specifically alleging that no notice had been given by t he vendor, the plaintiff chose t o give up the vendor as a party. In the absence o f the vendor, the issue relatin g to notice could not have been conclusively d e termined, thereby rendering the suit incapable of effective adjudication.

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Ac c ordingly, it is held that the no n -joinder of the vendor constitu t es a fatal defect, and the suit, as framed, is not m a intainable.

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CONCLUSION

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In v iew of the above discussion, this Court holds that:

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(i) The learne d first Appellate Court erred in dismissing the appeal as n ot maintainable;

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RSA No.2800 of 1996

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(ii) The finding regarding loss of right of pr e -emption due to amendment is legally unsustainable;

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(iii) However, t he suit itself is liable to fail on account of non-joinder o f a necessary part y , namely the vendor.

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Consequently, the present appe a l is allowed. The judgments and decrees passe d by both the Courts below ar e set aside. The suit filed by the plaintiff–respo n dent is dismissed with costs th r oughout.

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(DEEPAK GUPTA) 01.04.2026 JUDGE Jiten Whether speaking/reasoned : Yes/No Whether reportable : Yes/No

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Uploaded on : 01.04.2026

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Sanjay Kumar v. Chandgi Ram

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What the court decided

Sanjay Kumar v. Chandgi Ram

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