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2005 DIGILAW 1099 (PNJ)

Ram Kumar v. Dharam Singh

2005-10-20

M.M.KUMAR

body2005
Judgment M.M.Kumar, J. 1. Whether improvement of status by a vendee prior to institution of preemption suit would be a material factor to defeat the right of preemption, is the sole question which has been raised and is common in both these appeals (R.S.A. Nos. 4032 and 4033 of 2004) filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code). The defendant-appellants have challenged concurrent findings of fact recorded by both the Courts below holding that the right of preemption of the plaintiff-respondent could not be defeated merely by acquiring proprietary rights and by becoming co-sharers by the defendant-appellants by virtue of sale deed prior to the filing of suit especially when the earlier sale deed was also subject matter of preemption suit. 2. Facts are being taken from R.S.A. No. 4032 of 2004 and there is no dispute with regard thereto. Plaintiff-respondent Dharam Singh filed Civil Suit No. 1647 of 1990 for preemption in respect of the suit land against the defendant-appellants by placing reliance on the jamabandi for the year 1983-84. The defendant-appellants had purchased the suit land vide registered sale deed dated 19.12.1989 for an ostensible sale consideration of Rs.1,15,000/-. The plaintiff-respondent has been a co-sharer in the khewat out of which the sale was made. It has been asserted that he has been a co-sharer much prior to the execution of sale deed, at the time of sale deed and was continuing to be a co-sharer, whereas the vendees defendant-appellants are the strangers. It was claimed that no statutory notice in terms of Section 15 of the Punjab Preemption Act, 1913 (for brevity, the Act) (as applicable to Haryana) was ever issued to the plaintiff-respondent. Accordingly, a decree for possession by way of preemption in respect of the suit land in favour of the plaintiff-respondent was claimed against the defendant-appellants on payment of sale consideration or on payment of any other amount that may be fixed by the Court in respect of the suit land. 3. The defence of the defendant-appellants has been that the plaintiff-respondent had no right to preempt the sale because he was not a co-sharer in the suit land and that he had the notice of the sale. On that basis, the plea of estoppel was also raised. 3. The defence of the defendant-appellants has been that the plaintiff-respondent had no right to preempt the sale because he was not a co-sharer in the suit land and that he had the notice of the sale. On that basis, the plea of estoppel was also raised. It was further asserted that after purchase, the defendant-appellants have made improvements on the land by spending huge amount of money. It was still further claimed that they had also purchased the land measuring 3 kanals for a sale consideration of Rs. 16,000/- on 5.1.1989 which was much before the filing of the suit (another preemption Suit No. 583 of 1992 has been filed in respect of the sale deed dated 5.1.1989). 4. The trial Court has decreed the suit on 30.8.1993 and the defendant-appellants challenged the aforementioned judgment and decree before the learned lower Appellate Court. On account of amendment made in the Act, taking away the right of a co-sharer to preempt the sale, learned lower Appellate Court had allowed the appeal of the defendant-appellants on 9.5.1996 by setting aside the view taken by the learned trial Court in its judgment and decree dated 30.8.1993. On an appeal being Regular Second Appeal No. 1512 of 1996 filed before this Court and in view of the judgment of the Supreme Court in the case of Shyam Sunder and Ors. v. Ram Kumar and Anr., the judgment of the learned lower Appellate Court was set aside. It is appropriate to mention that the Punjab Preemption (Haryana Amendment) Act, 1995 had taken away the right of preemption of a co-sharer. However, the Supreme Court in Shyam Sunders case (supra) has held that the provision was prospective in its operation and in view thereof the judgment of learned lower Appellate Court was set aside. The appeal was remanded back to the lower Appellate Court with a direction to decide the same on merits. 5. After remand, the appeal filed by the defendant-appellants was dismissed upholding the view taken by the learned trial Court. Learned lower Appellate Court following the view taken by the Supreme Court in the case of Prema (Dead) through L.Rs. v. Surat Singh and Ors. 5. After remand, the appeal filed by the defendant-appellants was dismissed upholding the view taken by the learned trial Court. Learned lower Appellate Court following the view taken by the Supreme Court in the case of Prema (Dead) through L.Rs. v. Surat Singh and Ors. has held as under:- ...Even otherwise the above said two provisions of Section 21-A and 28-A of the Act are well discussed in the decision of Hon ble Supreme Court of India contained in Prema (dead) through L.R.s v. Surat Singh and Ors. 2003(1) R.C.R. (Civil) 763, wherein it has been held that scope of Section 21-A can not be generalised nor to limit to a particular situation, but has to be understood in the facts of each case. The purpose of the first suit, the defence of improvement of status based on the second sale can not be accepted because that acquisition of right itself is amenable to challenge and was indeed challenged. Acquisition of status for the purpose of Section 21-A of the Act would mean a status which is undisputable and/or not amenable to challenge and not the one in controversy or subject matter of challenge before a competent authority. Further while dealing Section 28-A the Hon ble Apex Court has held that improvement in the status of transferee, if in a suit for preemption, claim is based or a plea taken is dependent on a right of preemption, derived from the co-ownership of the property and title to such 1 and or property is liable to be defeated by endorsement of a right of preemption with respect to it, the court is directed not to decide the claim or plea until the period of limitation for the enforcement of such right of preemption has expired or the suit if filed is finally decided. Section 28-A is attracted where the plaintiff seeks relief of preemption as also to a case where the improvement of status is pleaded in defence.... It is appropriate to mention that the defendant-appellants had purchased the land measuring 21 Kanals 5 Marias for a sum of Rs.1,15,000/- vide registered sale deed dated 19.12.1989. It was also claimed that they have been owners in possession of the land and have a better right to preempt the sale in question, than the plaintiff-respondent as he has purchased 3 kanals of land for a sum of Rs.16,000/- from Lachhmi on 5.1.1989. It was also claimed that they have been owners in possession of the land and have a better right to preempt the sale in question, than the plaintiff-respondent as he has purchased 3 kanals of land for a sum of Rs.16,000/- from Lachhmi on 5.1.1989. Both the sales are subject matter of challenge by way of preemption suits in two appeals being R.S.A. No. 4032 and 4033 of 2004. It is further appropriate to mention that plaintiff-respondent Dharam Singh became a co-sharer by virtue of sale deed Ex.Dl after purchasing a part of the land for a sum of Rs.16,000/- on 3.12.1986. It has, therefore, been held that the plaintiff-respondent was a co-sharer in the khewat in question and has a right of preemption to preempt the sale in respect of the land purchased by the defendant-appellants. However, the argument raised before the lower Appellate Court was that the defendant-appellants had purchased a part of the land measuring 3 kanals for a sum of Rs. 16,000/-vide registered sale deed dated 5.1.1989 from Smt. Lachhmi. It was claimed that they have acquired the status of a co-sharer in the suit land along with the plaintiff-respondent. The aforementioned argument of the defendant-appellant was rejected on the ground that even the earlier sale deed dated 5.1.1989 was subject matter of challenge in Civil Suit No. 583 of 1992 which was filed by the plaintiff-respondent and the same was decreed on 17.4.1993. The view of the learned lower Appellate court while rejecting the aforemen-tioned argument reads as under:- ...But the said submission of counsel for the appellants-defendants is refuted by the judgment Ex.P7 placed on the file in civil suit No. 583 of 1982 (sic? 1992) titled Dharam Singh v. Baby Ram etc. which was decreed in favour of the plaintiff and against the defendants on 17.4.1993 by the then Learned Sub Judge IInd Class, Kaithal and if that is so, then the vendees, whose sale has already been sought to be preempted by the plaintiff in a separate litigation can not be said to have a equal right to that of the plaintiff or can not be said to have improved their status equally to that of the plaintiff. The plaintiff was co-sharer in the khewat in question much prior to the sale in question and the previous sale in favour of appellant-defendants has already been preempted by the plaintiff which suit has been decreed vide judgment Ex.P7. Therefore, the defendants can not be said to have acquired a equal or parallel right to that of the plaintiff by the defendants. Under such circumstances the provisions of Section 21-A and 28-A of the Punjab Preemption Act 1913 (hereinafter called the Act) are not at all attracted to the facts and circumstances of the present case, because firstly as per Section 21-A, the improvement in status as such by the vendeedefendant has already been challenged in a preemption suit which has been decreed in favour of the present plaintiff by dint of Ex.P7. Secondly, the provisions of Section 28-A regarding postponement of decision of the preemption suit are not attracted to the present facts as the previous suit has already been adjudicated upon.... 6. Mr. P.K.Palli, learned senior counsel appearing for the defendant-appellants has argued that Section 21-A of the Act completely comes to the rescue of the defendant-appellants because it excludes any improvement of status of a vendee, like the defendant-appellants, after the institution of a suit for preemption and, therefore, it does not affect such a status acquired earlier. According to the learned counsel, in the instant case, the defendant-appellants have acquired the right of co-sharers on the basis of sale deed dated 5.1.1989 as they have purchased land measuring 3 kanals vide registered sale deed of that date. Another registered sale deed which is sought to be preempted in favour of the defendant-appellants was executed on 19.12.1989 for a total sale consideration of Rs. 1,15,000/-. The plaintiff-respondent challenged the sale deed dated 5.1.1989 by filing Civil Suit No. 583 of 1992 on 5.1.1990 and the sale deed dated 19.12.1989 became sub" ject matter of challenge of Civil Suit No. 1647 of 1990, instituted on 6.11.1990. According to the learned counsel, on the date of execution of second sale deed dated 19.12.1989, no civil suit was pending in order to preempt the sale of land purchased by the defendant-appellants which was subject matter of registered sale deed dated 5.1.1989. According to the learned counsel, on the date of execution of second sale deed dated 19.12.1989, no civil suit was pending in order to preempt the sale of land purchased by the defendant-appellants which was subject matter of registered sale deed dated 5.1.1989. Learned counsel has emphasized that once, this is the factual position, then full grown right of the defendant-appellants as a co-sharer had come into existence before any challenge was raised by filing either of the two civil suits. In support of his submission, learned counsel has placed reliance on Section 21-A of the Act and a judgment of this Court in the case of Ram Kishan v. Smt. Sharbati and Ors. 1972 P.L.J. 54. He has also placed reliance on the view taken by a Division Bench of Lahore High Court in the case of Kewal Krishan v. Jain Brotherhood, Ludhiana and Ors. A.I.R. 1939 Lahore 77 which has been relied upon by the learned Single judge in Ram Kishans case (supra). On the basis of the aforementioned authorities, learned counsel has argued that a vendee can defeat the right of a preemptor by acquiring proprietary rights and by becoming a co-sharer in the land by coming at par with the preemptor after his first purchase but before the institution of the suit. 7. Mr. Rakesh Gupta, learned counsel for the plaintiff-respondent has argued that the view taken by the Division Bench in Kewal Krishans case (supra) in the year 1939 has to be considered in the light of provisions made in Section 21-A of the Act. According to the learned counsel, the Division Bench could not have considered the effect of this section which was incorporated later in 1944. Learned counsel has placed reliance on the judgment of the Supreme Court in Premas case (supra) and argued that the lower Appellate Court has correctly applied the law because in Premas case (supra), the facts and law are pari materia to the facts of the case in hand. 8. Having heard the learned counsel at some length, I am of the considered view that there is no merit in this appeal because the judgment in Premas case (supra) is squarely applicable to the facts of the present case. In that case, the vendees had purchased the agriculture land vide two separate sale deeds dated 4.9.1984 and 15.101984. 8. Having heard the learned counsel at some length, I am of the considered view that there is no merit in this appeal because the judgment in Premas case (supra) is squarely applicable to the facts of the present case. In that case, the vendees had purchased the agriculture land vide two separate sale deeds dated 4.9.1984 and 15.101984. Thereafter, a co-sharer had filed the suit for preemption with regard to the land covered by the first sale and later he filed another suit in respect of the land which was subject matter of the second sale. The plea of the vendee that he had become a co-owner and has, thus, improved his status before filing of the first suit, was rejected by the Supreme Court by placing reliance on Sections 21-A and 28-A of the Act. The aforementioned provisions read as under- 21-A. Any improvement, otherwise, than through inheritance or succession, made, in the status of a vendee defendant after the institution of a suit for preemption shall not affect the right of the preemptor plaintiff in such suit, (added in 1944).... 28-A. (1) If in any suit for preemption any person bases a claim or a plea on a right of preemption derived from the ownership of agricultural land or other immovable property and the title to such land or property is liable to be defeated by the enforcement of a right of preemption with respect to it, the Court shall not decide the claim or plea until the period of limitation for the enforcement of such right of preemption has expired and the suits for preemption (if any) instituted with respect to the land or property during the period have been finally added. (2) If the ownership of agricultural land or other immovable property is lost by the enforcement of a right of preemption, the Court shall disallow the claim or plea based upon the right of preemption derived thereof. [Added by Act (II of 1928)]. While rejecting the aforementioned argument of the vendee, their Lordships observed as under:- 8. A plain reading of the provision, extracted above, would show that it nullifies the effect of acquisition of any right by the defendant in a preemption suit for the purpose of improvement of his status pendente lite, except by way of inheritance or succession. While rejecting the aforementioned argument of the vendee, their Lordships observed as under:- 8. A plain reading of the provision, extracted above, would show that it nullifies the effect of acquisition of any right by the defendant in a preemption suit for the purpose of improvement of his status pendente lite, except by way of inheritance or succession. On the clear language of the provisions, it is difficult to accede to the contention that Section 21-A of the Act would be attracted only in a case where one of the co-owners as a defendant in a preemption suit loses his status by virtue of being a co-vendee with a stranger and subsequently improves his status by acquiring pendente lite the fight of the stranger vendee; Explaining the view expressed by a Full Bench of this Court in Garib Singh Kishan Singh and Harnam Singh Kishan Singh,5, their Lordships considered the scope of Section 21-A of the Act in para 12 and the same reads as under:- 12. The conclusion arrived at and the answer recorded to the aforementioned question have to be understood in the facts of that case and cannot be generalised to limit the scope of Section 21-A of the Act. Be that as it may, from what we have stated above, it is clear that for the purpose of the first suit, the defence of the improvement of status based on the second sale cannot be accepted because that acquisition of right itself is amenable to challenge and was indeed challenged. Acquisition of status for the purpose of Section 21-A of the Act would mean, a status which is undisputable and/or not amenable to challenge and not the one in controversy or the subject-matter of challenge before a competent court. (emphasis added) Holding further that Section 28-A of the Act is a mandate to the Court not to decide the claim or a plea of a vendee with regard to his right to land which is dependent on a right to preemption, their Lordships observed as under- 14. (emphasis added) Holding further that Section 28-A of the Act is a mandate to the Court not to decide the claim or a plea of a vendee with regard to his right to land which is dependent on a right to preemption, their Lordships observed as under- 14. A careful reading of this provision shows that if in a suit for preemption, claim is based on a plea taken is dependent on a right of preemption derived from the co-ownership of the agricultural land or other immovable property and title to such land or property is liable to be defeated by enforcement of a right of preemption with respect to it, the Court is directed not to decide the claim or plea until the period of limitation for the enforcement of such right of preemption has expired or the suit for preemption, if any, instituted with respect to the land or property during the period has been finally decided. Section 28-A of the Act is attracted to a case where a plaintiff seeks relief of preemption as also to a case where the improvement of status is pleaded in defence. If that be so, the fact that by virtue of the second sale, the appellant has acquired one-eighth share in the joint property would be of no consequence as the plea of improvement of status would not be available to him as the second sale itself is the subject-matter of the second suit. (emphasis added) 9 When the facts of the present case are examined in light of the principles laid down by the Supreme Court in Premas case (supra), then no doubt is left that the learned lower Appellate Court has correctly applied the law as interpreted by the Supreme Court in Prema s case (supra). In the instant case also, there are two sale deeds dated 5.1.1989 and 19.12.1989. The first sale deed has been successfully challenged by the plaintiff-respondent by filing Civil Suit No. 583 of 1992, instituted on 5.1.1990 and the second sale has been made subject matter of challenge in Civil Suit No. 1647 of 1990, instituted on 6.11.1990. The first suit was filed after the execution of both the sale deeds. It was in these circumstances that the right of preemption of the co-sharer was upheld by the Supreme Court in Premas case (supra). The first suit was filed after the execution of both the sale deeds. It was in these circumstances that the right of preemption of the co-sharer was upheld by the Supreme Court in Premas case (supra). Therefore, there is no possibility of distinguishing the judgment of the Supreme Court in Premas case (supra) in respect of the facts of the present case. The reliance placed by the defendant-appellants on a judgment of this Court in Ram Kishans case (supra) and a Division Bench judgment of Lahore High Court in Kewal Krishans case (supra) tasking a contrary view can, therefore, be of no help to the defendant-appellants. The appeals are, therefore, liable to be dismissed. 10. For the reasons aforementioned, these appeals fail and consequently both the appeals are dismissed.