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2010 DIGILAW 621 (PNJ)

Jai Pal Singh v. Ram Parshad

2010-01-25

RAKESH KUMAR GARG

body2010
Judgment RAKESH KUMAR GARG, J. 1. This is defendants second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondents for possession by way of pre-emption has been decreed. As per the averments made, plaintiff-respondent No.1 filed a suit for possession of the land in dispute by way of preemption on the ground that respondent Nos.2 to 4 (defendant No.4 to 6) were the owners and joint possession of the land including the suit land, and they sold the land to the extent of 13/36 share in favour of the appellants (defendant Nos.1 to 3), for a consideration of Rs.1,99,000/- vide sale deed dated 2.11.1989. The defendants in collusion with each other incorporated the specific khasra numbers, so as to avoid the pre-emption of the sale, and have alleged mutual partition and the recital in the sale deed is not correct because the appellants had purchased a share out of the suit land. The suit land was sold for a consideration of Rs.1,50,000/- and a sum of rs.1,99,000/- was shown wrongly. No notice was served upon the plaintiff respondent. Hence the present suit, 2. The suit was contested by the appellants on the ground that the khewat was not joint between the plaintiff -respondent and defendant Nos.4 to 6. The plaintiff was the exclusive owners of particular khasra numbers and he was not the co-sharer and the defendant-appellants had purchased specific khasra numbers as there was a mutual partition. The parties were no more co-owners and in joint possession of the suit land. The suit land was rightly sold for sale consideration of Rs.1,99,000/- for which the defendant-appellants were entitled to stamp and registration charges, and had spent a sum of Rs.5928/-for the development of the suit land. Thus, the suit was liable to be dismissed. 3. On appreciation of evidence, the trial Court found that the mutual private partition as alleged by the appellants was not proved and the sale of specific khasra numbers being the sale of his share, it was held that plaintiff was a co-sharer in the suit land at the time of the sale and still was a co-sharer in the suit land and, therefore, he had a superior right to pre-empt the sale in question. Thus, the suit of the plaintiff-respondent was decreed. 4. Thus, the suit of the plaintiff-respondent was decreed. 4. Feeling aggrieved by the aforesaid judgment and decree of the trial Court dated 23.7.1993, appellants filed Civil Appeal No.116 of 1993, which was accepted by the District Judge, Bhiwani vide his judgment dated 17.4.1995. Against the aforesaid judgment and decree plaintiff-respondent filed rsa No.1838 of 1995, which was allowed by this Court vide judgment dated 13.7.2006 whereby the judgment and decree of the lower Appellate Court dated 17.4.1995 was set aside and the matter was remanded back to the first Appellate Court for decision afresh. On remand the lower appellate Court vide impugned judgment and decree dated 17.5.2007 affirmed the findings of the trial Court vide judgment and decree dated 23.7.1993. While dismissing the appeal, the lower Appellate Court observed as under:- " The learned defence counsel vehemently argued that the vendors sold the specific khasra numbers to them as mentioned in sale deed Ex. P1. They did not sell the share in the joint khewat. The plaintiff purchased the land from Bhagirath, vide sale deed dated 21.10.1985, copy of which is Ex. D5. From the perusal of this sale deed, it is clear that specific khasra numbers were sold to them. The land sold to them and his brothers was faillng in khewat no.227, khatoni no.276/231, killa numbers 30 and 36 12 19 21, 22 1 8-0 8-0 7-12 8-0 8-0 it shows that they were given share in the particular numbers only and not the entire khewat. Mutual partition is clearly proved in between the parties, which is clear from the perusal of sale deeds ex. D1,ex. D2,ex. D4,ex. D9 and Ex. D10, because vide those sale deeds specific numbers were sold. The parties are in possession of the specific portion of the land. In this way the plaintiff cannot be considered as co-sharer even if the khewat is joint and has no right of pre-emption. In support of his arguments he placed reliance upon Dharambir Vs. Bhagat Ram, 1993 (1)RRR 114, Indeer Singh versus Om Parkash, 1990 (1) RRR 32, Lachman Singh Versus Pritam Chand and another 1970 PLR-341, Bakshish Singh versus Gurcharan Singh and others, 1972 PLJ 672, Mst. In support of his arguments he placed reliance upon Dharambir Vs. Bhagat Ram, 1993 (1)RRR 114, Indeer Singh versus Om Parkash, 1990 (1) RRR 32, Lachman Singh Versus Pritam Chand and another 1970 PLR-341, Bakshish Singh versus Gurcharan Singh and others, 1972 PLJ 672, Mst. Gurnam Kaur versus Balla Ram and others 1970 PLJ 687, Mahesh Pal and another versus Desh Raj Singh and others, AIR 1983,punjab andharyana 435, Surjit singh versus Bikhu Ram and another 1991 PLJ 346, Mohan singh versus Lachman Singh, 1993 (1)RRR 24 and Nirmal Singh and another versus gurbachan Singh, 1987 PLJ 239". I do not agree with this contention. The Honble supreme Court has opined in the year 2002 that sale of a specific portion of the land described by particular khasra numbers by co-owner out of a joint khewat and is pre- emptible. It is clearly laid down that if partition has not taken place in between the parties and the khewat is joint, then vendee become a co-sharer even if a specific khasra number out of specific khewat is sold. My these view are fortified by the opinion of Honble Supreme Court expressed in Mange ram and others versus Ram Chander reported in 2002 (1)L. J. R.11, Pokhar (dead) by lrs versus Ram Singh reported 2002 (3) L. J. R.516 and of our own Honble High court expressed in Vijay Pal Versus Rohtash Singh reported in 2006 (3) PLR 343 and Samer Chand and others versus Sahi Ram reported in 1984 PLJ 405. When the Honble Supreme Court has clearly opined that a person will be co-sharer, the defendants cannot derive benefit from the cited case laws. That opinion was expressed much before the year 2002. Had the Honble Supreme Court has not given any opinion about this law then it could have been a different matter. From the perusal of copy of jamabandi Ex. P2 it is clear that the land was joint. No partition had taken place among the co-sharers. If specific numbers are sold vide different sale deeds, it does not mean that partition took place in between the parties. There is no cogent evidence on the file on the basis of which it can be presumed that partition took place in between the parties. If the co-sharer are cultivating the specific land with mutual consent, it does not mean that partition has taken place in between the parties. There is no cogent evidence on the file on the basis of which it can be presumed that partition took place in between the parties. If the co-sharer are cultivating the specific land with mutual consent, it does not mean that partition has taken place in between the parties. It was no where reported to revenue authorities or any other concerned person that a partition has taken place among them. So these arguments are of no avail. The learned trial court has rightly decreed the suit of the plaintiff. The findings of the learned trial Court are well reasoned, based on law and facts and cannot be disturbed". 5. Still not satisfied the appellants have preferred the instant appeal. 6. Learned counsel for the appellants has vehemently argued that the private partition between the parties stands proved, and the same was discussed in the earlier judgment dated 17.4.1995. While setting aside the aforesaid judgment and decree this Court in RSA No.1838 of 1995 remanded the matter back to the lower Appellate Court and directed to decided the same afresh keeping in view the judgment of the Honble Supreme Court in the case of Shyam Sunder and others V/s. Ram Kumar and another, AIR 2001 SC 2472, whereas while passing the impugned judgment and decree, the lower Appellate Court has dismissed the appeal keeping in view the judgment in the case of Mange Ram and others versus ram Chander 2002 (1)LJ. R.11, and has failed to consider Shyam Sunders case (supra ). 7. The argument raised by the learned counsel for the appellants is without any substance. While remanding the case this Court in RSA No.1838 of 1995, had set aside the judgment and decree of the lower Appellate Court and had directed to decide the matter afresh. It has been authoritatively laid down by the Honble Supreme Court that the sale of a specific portion of the land described by particular khasra number by co- owner out of a joint khewat is pre-emptible. It was further laid down that if partition has not taken place in between the parties and the khewat is joint, then vendee become a co-sharer even if a specific khasra number out of specific khewat is sold. 8. Learned counsel for the appellants could not dispute the aforesaid settled proposition of law. It was further laid down that if partition has not taken place in between the parties and the khewat is joint, then vendee become a co-sharer even if a specific khasra number out of specific khewat is sold. 8. Learned counsel for the appellants could not dispute the aforesaid settled proposition of law. What is contended by him is that there is a recital in the sale deed showing that they had purchased only a specific khasra number and mutual partition was already there and all the vendees were in possession of the land in question as there is an admission on the part of the plaintiff-respondent that the appellants had purchased the land with specific numbers out of the suit land and the land was sold to different persons by different appellants in lieu of private partition. Thus, on the basis of the aforesaid argument, learned counsel for the appellants has argued that the judgment and decree of the lower appellate Court is liable to be set aside and the following substantial question of law arises in this appeal:- "whether the land which has already mutually partitioned cannot be pre-empted by filing a suit, a person who had also purchased specific number with possession?" 9. I have heard the learned counsel for the parties and have gone through the record. 10. There is no dispute with the proposition of law that sale on a specific khasra number out of a joint khewat is a sale of a share and is pre-emptible. The plea of private partition, as set up by the appellants, has not been accepted by the Courts below in the absence of any cogent evidence on the record. In spite of the stand taken in the written statement, no such mutual partition has been proved on the record by the appellants. The contention advanced by the learned counsel for the appellants that since they had purchased specific khasra number and there was a recital with regard to the mutual partition in the sale deed is not sufficient to hold that there had been a mutual partition of the land in dispute as claimed by the appellants. No substantial question of law arises and pressed by the learned counsel for the appellants. 11. For the reasons recorded hereinabove, I find no merit in this appeal and the same dismissed.