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2004 DIGILAW 120 (PNJ)

Gurdeep Singh v. Kuldeep Singh

2004-02-04

RAJIVE BHALLA

body2004
Judgment Rajive Bhalla, J. 1. The appellant, by way of the present Regular Second Appeal, impugns the judgment and decree of the Additional District Judge dated 3.3.1984, vide which Civil Appeal No. 141 of 1983 filed by respondents No. 1 & 2 was allowed and Civil Appeal No. 163 of 1983 filed by the appellant was dismissed. 2. One, Shingara Singh was the owner of land measuring 27 kanals 12 marlas. Upon his demise, the land was inherited by his sons Balwant Singh and Joginder Singh, Balwant Singh sold khasra No. 25, Rect. No. 52 and Khasra No,5, Rect. No. 62, to Kulbir Singh and Kuldeep Singh, respondent No. 1 & 2 vide registered sale deed dated 23.6.1979. Thereafter, vide registered sale deed dated 25.11.1980, Joginder Singh sold Khasra Nos. 4/2 and 7/1, measuring 11 kanals 12 marlas, from Rect. No. 62 to the appellant and respondents No. 3 & 4. After the appellant and respondents No. 3 and 4 purchased land from Rect. No. 62, respondents No. 1 and 2 filed the present suit for preemption basing their claim upon their status as co-sharers in Rect. No. 62. The appellant and respondents No. 3 & 4 sought to resist the suit on the plea that as respondent No. 1 and 2 had purchased specific khasra numbers, they did not become co-sharers in the entire khewat. Therefore, the suit was liable to be dismissed. 3. On the basis of the pleadings of the parties the learned trial court framed the following issues;- "1. Whether the plaintiffs have a superior right to pre-emption? OPP 2. Whether the defendants had carried out any improvement upon the suit land after its purchase. If so, to what extent and to what effect? OPD 3. Whether the defendants were tenants upon the suit land at the time of its sale, if so, to whether the sale is not pre-emptable? OPD 4. Whether the suit is barred by limitation? OPD 5. Relief." 4. The learned trial Court, vide its judgment and decree dated 31.1.1983, decreed the suit for possession, by way of pre-emption, subject to the deposit of a sum of Rs. 24592.50 by 28.2.1983, minus the amount already deposited. However, under issue No. 2, the learned trial Court held that respondents No. 1 & 2 were obliged to defray the expenses of Rs. 24592.50 by 28.2.1983, minus the amount already deposited. However, under issue No. 2, the learned trial Court held that respondents No. 1 & 2 were obliged to defray the expenses of Rs. 1485/-, incurred by the appellant and respondents No. 3 & 4 in improving the land. 5. Aggrieved by the aforementioned judgment and decree, both parties preferred appeals. The appellant filed Civil Appeal No. 163, impugning the decree for pre-emption, whereas respondents No. 1 & 2 filed Civil Appeal No. 141/83 impugning the decree regarding payment for improvements. 6. The first appellate Court disposed of both the appeals by a common judgment and decree dated 3.3.1984. The appeal filed by respondents No. 1 & 2 was accepted, whereas the appeal filed by the present appellant was dismissed. 7. In the present appeal, counsel for the appellant seeks to raise the following questions of law;- 1. Whether in view of the amendment of Section 15(1)(b)of the Punjab Pre-emption Act (as applicable to Haryana), the right of a co-sharer to pre-empt the sale survives? 2. Whether on account of purchase of specific khasra numbers, the respondent/ pre-emptors could be held to be the co-sharers and, therefore, entitled to pre-empt? 8. In so far as the first question is concerned, counsel for the appellant contends that by virtue of an amendment, Section 15(1)(b) of the Punjab Pre-emption Act (as applicable to Haryana) was substituted by a new Section 15. Pursuant thereto, the right of a co-sharer to pre-empt a sale has been taken away. The aforementioned amendment applies to all pending appeals and, therefore, the present appeal is liable to be accepted and the judgments and decrees of the learned Courts below set aside. 9. On the second point, the learned counsel for the appellant contends that respondents No. 1 & 2 purchased specific khasra numbers and, therefore did not become co-shares and they could not maintain a suit for pre-emption. 10. Learned counsel for respondents No. 1 & 2 on the other hand, argued that the amended Section 15 was prospective in operation, it would not extinguish the rights of pre-emption in pending proceedings and, therefore, the appeal could not be dismissed on account of the amendment. In support of his contention, reliance is placed upon a judgment of the Apex Court in Shyam Sunder and Anr. v. Ram Kumar and Anr., J.T. 2001(6) S.C. 94. 11. In support of his contention, reliance is placed upon a judgment of the Apex Court in Shyam Sunder and Anr. v. Ram Kumar and Anr., J.T. 2001(6) S.C. 94. 11. As regard to the second point, counsel for respondents No. 1 & 2 contends that there is no dispute about the fact that both the parties have purchased specific khasra numbers from one Rectangle. Respondents No. 1 and 2 purchased khasra No. 5, whereas the appellant and respondents No. 3 and 4 purchased khasra Nos. 4/2 and 7/1 both from Rect. No. 62. It is further contended that when respondents No. 3 & 4 purchased land from Rect. No. 62, respondents No. 1 & 2 were already co-sharers therein and therefore, by virtue of their status as co-sharers, were well within their rights to exercise their preferential right of pre-emption. For this proposition, reliance is placed upon a decision of Full Bench of this Court reported as Lachhman Singh v. Pritam Chand and Anr., (1970)72 P.L.R. 341. 12. After hearing the learned counsel for the parties and perusing the record, I am of the opinion that the points raised by counsel for the appellant lack any merit. 13. In so far as the first question is concerned, the matter stands concluded against the appellant by a judgment of the Apex Court in Sham Sunder and Anr. v. Ram Kumar and Anr. (supra). It has been held therein that the substituted Section 15 is prospective in operation and does not affect pending proceedings. The amendment does not affect the rights of the parties where suits/appeals are already pending. Pending suits and appeal would have to be decided on the basis of old Section 15(1)(b) of the Punjab Preemption Act. 14. In view of the above mentioned judgment as also the facts of the case, the amendment does not affect the present proceedings. The suit was filed on 26.11.1981 and decreed on 31.1.1983. The first appeals were filed on 23.3.1983 and 17.8.1983. They were decreed on 3.3.1984. The present Regular Second Appeal was filed on 23.3.1984. The amendment came into force on 1.7.1995. Thus, it is apparent that the present appeal has to be decided on the basis of the old Section 15(1)(b) of the said Act. 15. The first appeals were filed on 23.3.1983 and 17.8.1983. They were decreed on 3.3.1984. The present Regular Second Appeal was filed on 23.3.1984. The amendment came into force on 1.7.1995. Thus, it is apparent that the present appeal has to be decided on the basis of the old Section 15(1)(b) of the said Act. 15. The next point urged by counsel for the appellant to the effect that by purchasing specific khasra numbers the appellant did not become a co-sharer also merits rejection as the matter stands concluded by a Full Bench judgment of this Court in Lachhman Singh v. Pritam Chand and Anr.s case (supra). The question posed before the Full Bench was whether a vendee who purchases specific khasra numbers out of a specific Rectangle, become a co-sharer with respect to the entire land or only with respect to the Rectangle from which the purchases the specific khasra numbers. The relevant extract of the judgment of the Full Bench reads as follows:- "13. And, lastly the plaintiffs not having purchased a share of the whole of the joint land of the original three co-sharers and having only purchased a share of defined Killa numbers of defined rectangles that is to say rectangles 6 and 13, they obviously, in the terms of their sale deed, do not have their rights extending beyond the land of which share has been sold to them. In other words, while they become joint owners or co-sharers of the land of rectangles 6 and 13 with the original co-sharers, they do not become co-sharers with them in the other or the remaining joint land of those three original co-charers." 16. The above reproduced extract from the judgment of the Full Bench is a complete answer to the arguments raised by counsel for the appellant. Respondents No. 1 and 2 became co-sharers in Rect. No. 62 by virtue of having purchased khasra No. 5 from Rect. No. 62 prior to the purchase of land from Rect. No. 62 by the appellant and respondents No. 3 and 4. In this view of the matter, respondents No. 1 & 2 were well within their rights to exercise their preferential right of pre-emption qua the subsequent sale deed executed in favour of the appellant and respondents No. 3 and 4. The arguments raised by counsel for the appellant are thus without merit. 17. In this view of the matter, respondents No. 1 & 2 were well within their rights to exercise their preferential right of pre-emption qua the subsequent sale deed executed in favour of the appellant and respondents No. 3 and 4. The arguments raised by counsel for the appellant are thus without merit. 17. Before parting with the judgment, it would be appropriate to mention here that during the pendency of this appeal, respondents No. 1 & 2 filed an application C.M. No. 3320-C of 1986 seeking permission to withdraw the amount deposited by them towards the sale consideration. Notice of the said application was issued to counsel for the appellant, who did not raise any objection to the aforementioned prayer. Consequently, respondents No. 1 & 2 were allowed to withdraw the aforementioned amount. Learned counsel for respondents No. 1 & 2 prays for time to deposit the said amount. Respondents No. 1 & 2 are granted two months time to deposit the amount withdrawn by them pursuant to the orders of this Court. 18. No other point has been raised. 19. For the reasons mentioned above, the impugned judgments and decrees do not call for any interference. The present appeal is dismissed with no order as to costs.