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2000 DIGILAW 824 (PNJ)

Surja Ram v. Birbal

2000-07-31

K.C.GUPTA

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JUDGMENT K.C. Gupta, J. - This Regular Second Appeal is directed by Surja Ram (plaintiff) against the judgment and decree dated 28.4.1979, whereby his suit for possession by pre-emption was dismissed and also vide judgment dated 4.9.1980 his appeal was dismissed by the learned Additional District Judge, Sirsa. 2. Briefly stated the facts are that Sarvshri Hiru, Kashi, Manphool, Bishna, Moman, Smt. Mam Kaur, Kanda, Het Ram and Jamna of village Chakkan sold land measuring 45 Kanals 16 Marlas comprised in Khewat No. 303, Khatauni No. 443 Rect. 44 Killa Nos. 8 and 9 (16-0), 10/1 (2-16), 11/2 (2-16), 12 to 14 (24-0) and Khewat No. 78 Khatauni No. 103 Rect. No. 44 Killa Nos. 15/1 (0-4) situated in village Chakkan by way of registered sale deed executed on 11.1.1977 and registered on 12.1.1977 to the respondents (defendants) for ostensible price of Rs. 38,000/-. The appellant claiming himself to be co-sharer in the Khewat out of which the suit land had been sold filed a suit for possession by pre- emption. He further alleged that the suit land was sold for a sum of Rs. 27,000/- and the amount of Rs. 38,000/- was fictitiously shown in the order to defeat his right of pre-emption. 3. The respondents contested the suit and filed written statement. They pleaded that they had purchased the suit land by way of specific Killa Numbers and not the share out of the joint Khewat and as such, the appellant did not become a co-sharer in the suit land, so he has no right to file a suit for possession by way of pre-emption. They have further stated that they had purchased the suit land for Rs. 38,000/- and had also spent a sum of Rs. 2000/- in improving the land besides incurring expenses on stamps and registration. 4. On the pleadings of the parties, following issues were framed :- 1. Whether the plaintiff has a preferential right to pre-empt the sale ? OPP 2. Whether an amount of Rs. 38,000/- was fixed in good faith or was actually paid as sale consideration ? OPP 3. If issue No. 2 is not proved what was the value of the suit land at 6the time of the sale ? OP Parties 4. Whether the defendants are entitled to stamp and registration charges ? OPP 5. Whether the defendants are entitled to an amount of Rs. OPP 3. If issue No. 2 is not proved what was the value of the suit land at 6the time of the sale ? OP Parties 4. Whether the defendants are entitled to stamp and registration charges ? OPP 5. Whether the defendants are entitled to an amount of Rs. 2000/- as charges for improvement ? OPD 6. Whether the suit land cannot be the subject of pre-emption ? OPD 7. Whether the defendants are entitled to special costs ? OPD 8. Relief. 5. The parties adduced their evidence. After hearing learned counsel for the parties, the trial Court dismissed the suit by holding under issue No. 1 that the appellant had no preferential right to pre-empt the sale as no share had been sold out of the joint land but only specific Killa numbers had been sold and as such he did not become a co-sharer qua the suit land. Under issue No. 2 it was held that the suit land was sold for Rs. 38,000/-. Issue No. 3 was left undecided having become redundant. Under issue No. 4 it was held that respondents had incurred Rs. 4200/- on stamps and registration etc. Issues No. 5 and 6 were decided against the respondents as not pressed. Under issue No. 7 it was held that there was no ground for awarding the special costs. Aggrieved by the said judgment and decree, the plaintiff filed appeal which was heard by the Additional District Judge, Sirsa and the same was dismissed vide judgment dated 4.9.1980. Aggrieved by the said judgment, the plaintiff had filed the present Regular Second Appeal. 6. None has appeared on behalf of the appellant to assist despite notice. Mr. Tejinder Pal Joshi, Advocate appeared on behalf of the respondents. 7. Learned counsel for the respondents contended that since the respondents had purchased the land measuring 45 Kanals 16 Marlas comprised in specific killa numbers and not the share out of the joint Khewat, so the appellant had no right to pre-empt the same. Mr. Tejinder Pal Joshi, Advocate appeared on behalf of the respondents. 7. Learned counsel for the respondents contended that since the respondents had purchased the land measuring 45 Kanals 16 Marlas comprised in specific killa numbers and not the share out of the joint Khewat, so the appellant had no right to pre-empt the same. To buttress his arguments he has placed reliance on Smt. Gurnam Kaur v. Ralla Ram, 1970 PLJ 687; Bakshish Singh v. Gurcharan Singh and others, 1972 PLJ 672 and Shiv Ram and others v. Shree Des Raj, 1970 PLJ 198 in which it was held that if the sale was not of share out of joint land, then there is no right to pre-empt under Section 15(1)(b) of the Punjab Pre-emption Act. In my opinion, the above mentioned authorities i.e. Smt. Gurnam Kaur (supra) and Bakshish Singh (supra) have been specifically overruled by the Full Bench judgment of this Court reported as Bhartu v. Ram Sarup, 1981 PLJ 204 in which it was held that sale of a specific portion of land described by particular Khasra numbers by a co-owner out of joint Khewat would be a sale of share out of the joint land and is pre- emptible under Section 15(1)(b) of the Punjab Pre-emption Act. It has been further clarified in it that the words share of joint land include in its ambit any sale out of the joint holding by a co-sharer irrespective of the fact whether the land sold is fractional share or specified portion comprised of particular Khasra numbers and the right of pre-emption cannot be defeated simply by describing the land purchased in terms of specific Khasra numbers instead of fractional share. There is no dispute that the appellant is a co- sharer in the joint Khewat out of which the respondent had purchased the land measuring 45 Kanals 16 Marlas having specific killa numbers. Therefore, in view of the law laid down in the above mentioned authority of the Full Bench, the appellant has got a preferential right to pre-empt the sale. Therefore, in view of the law laid down in the above mentioned authority of the Full Bench, the appellant has got a preferential right to pre-empt the sale. Consequently this Regular Second Appeal is allowed, the judgment and decree of the trial Court as well as of the appellate Court are set aside and the suit of the plaintiff for possession by pre-emption of the land measuring 45 Kanals 16 Marlas comprised in Khwat No. 303 Khatauni No. 443 as mentioned above is decreed on payment of Rs. 38,000/- as sale consideration and Rs. 4,200/- as stamps duty, registration and other expenses. The said amount be deposited within one month from today excluding 1/5th amount if already deposited. If the appellant has not already deposited 1/5th amount then whole of the amount be deposited now. Appeal allowed.