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2011 DIGILAW 84 (PNJ)

Tara Singh v. Ram Sarup

2011-01-07

L.N.MITTAL

body2011
Mr. L. N. Mittal, J (Oral).- Jodha proforma respondent No.2 (proforma defendant No.5 in the trial Court) sold 16 kanals land in suit to defendant Nos.1 to 4 (appellants) vide registered sale deed dated 22.07.1980. Respondent No.1 plaintiff-Ram Sarup, who is brother of vendor Jodha, filed suit to pre-empt the said sale. The plaintiff alleged in para 2 of the plaint that plaintiff and vendor are real brothers and they have joint khewat. Vendees have no relationship with the vendor and, therefore, the plaintiff has pre-emptive right to purchase the suit land. 2. Learned Trial Court vide judgment and decree dated 25.07.1983 decreed the plaintiff's suit for pre-emption on the ground that plaintiff being real brother of the vendor has superior right of pre emption. First appeal preferred by the vendees was partly allowed by District Judge vide judgment and decree dated 02.08.1984 by slightly enhancing the pre-emption amount. Vendees filed second appeal bearing RSA No.2567 of 1984 in this Court. 3. Hon'ble Supreme Court in the case of Atam Prakash versus State of Haryana AIR 1986 Supreme Court 859 held that right of pre-emption on the ground of kinship with the vendor is unconstitutional. Said ground of pre-emption was, therefore, struck down from the statute. In view of said judgment of Hon'ble Apex Court, second appeal filed by the vendees was allowed by this Court vide judgment dated 23.04.2004 and consequently pre-emption suit filed by respondent No.1-plaintiff was dismissed. 4. Respondent No.1 challenged judgment dated 23.04.2004 of this Court by filing SLP (Civil) No.17714 of 2004 which was disposed of by Hon'ble Apex Court vide order dated 31.01.2007 Annexure R-2 which is reproduced hereunder: “Heard learned counsel for the parties. In our view, the petitioner should file a review petition before the High Court. If such a petition is filed, the same shall be considered on its own merit. It is directed that in case, the review petition is filed within a period of one month from today, status quo in relation to the land in question, as it exists today, shall be maintained till the disposal of the review petition. The special leave petition is, thus, disposed of.” 5. It is directed that in case, the review petition is filed within a period of one month from today, status quo in relation to the land in question, as it exists today, shall be maintained till the disposal of the review petition. The special leave petition is, thus, disposed of.” 5. Pursuant to aforesaid order of Hon'ble Apex Court, respondent No.1 has filed the instant review application alleging that respondent No.1-applicant had also claimed superior right of preemption on the ground of being co-sharer in the land in question and, therefore, order dated 23.04.2004 of this Court allowing the appeal of the vendees deserves to be reviewed as the question of the plaintiff having superior right of pre-emption on the ground of co-sharership has not been adjudicated upon. 6. Review application has been contested by the appellants/vendees on various grounds. It has inter alia been alleged that respondent No.1-plaintiff did not claim superior right of pre-emption on the ground of cosharership. On the contrary, vendees were already cosharers in the joint khewat prior to the impugned sale having purchased share in the joint khewat from Jodha vendor himself vide earlier sale deed dated 6/9.06.1978 Annexure A-1. Various other pleas were also raised. 7. I have heard learned senior counsel for the parties at considerable length and perused the case file. Perusal of the impugned sale deed reveals that vendor sold specific 16 kanals land of khasra Nos.29//1(6-9), 4/1(1-11) and 10(8-0) being out of 1/5th share of vendor in 369 kanals land of khewat. 8. Learned counsel for applicant-respondent No.1 vehemently contended that respondent No.1-plaintiff claimed superior right of pre-emption on the ground of being brother of the vendor and also on the ground of being cosharer, but plaintiff's right on the ground of being cosharer has not been adjudicated upon in impugned judgment dated 23.04.2004 and, therefore, the said judgment deserves to be reviewed. 9. Learned counsel for the non-applicant-appellants on the other hand vehemently contended that respondent No.1 plaintiff never claimed superior right of pre-emption on the ground of cosharership and claimed the right of pre-emption only on the ground of being brother of the vendor. 9. Learned counsel for the non-applicant-appellants on the other hand vehemently contended that respondent No.1 plaintiff never claimed superior right of pre-emption on the ground of cosharership and claimed the right of pre-emption only on the ground of being brother of the vendor. In this context, it was also pointed out that even in the witness-box, the plaintiff stated about his right of preemption on the ground of being brother of the vendor, but did not state even a word about being cosharer in the land in question. Even in the trial Court, superior right of pre-emption was claimed by the plaintiff and was granted by the trial Court only on the ground of plaintiff being brother of the vendor and not on the ground of being cosharer in the land in question. Learned counsel for non-applicantappellants also submitted that respondent No.1-plaintiff consciously and intentionally did not claim pre-emption right on the ground of cosharership because vendees/appellants had already become cosharers in the joint khewat on the basis of earlier sale deed Annexure A-1. 10. I have carefully considered the rival contentions. Perusal of para 2 of the plaint in which the plaintiff claimed his superior right of pre-emption reveals that he claimed his right of pre-emption only on the ground of being brother of the vendor. In this context, it is specifically mentioned in the plaint that vendees have no relationship with the vendor. It is correct that plaintiff also mentioned in paragraph 2 of the plaint that khewat of plaintiff and vendor is joint. However, the plaintiff did not claim superior right of pre-emption on the ground of cosharership because it was not even pleaded that vendees are not cosharers in the said khewat. If preemptor and vendees were both cosharers in the joint land, then plaintiff cannot claim superior right of pre-emption on the ground of cosharership. In fact even in the witness-box, the plaintiff did not utter even a single word about cosharership and simply stated about his relationship with the vendor, both being brothers. If the plaintiff had specifically pleaded his right of pre-emption on the ground of cosharership, the vendees would have rebutted it by claiming that they were also already cosharers in the joint land in question in view of earlier sale deed Annexure A-1. If the plaintiff had specifically pleaded his right of pre-emption on the ground of cosharership, the vendees would have rebutted it by claiming that they were also already cosharers in the joint land in question in view of earlier sale deed Annexure A-1. Here, it has to be noticed with significance that this plea raised by non-applicant appellants in their reply to the review application has not been rebutted by review applicantrespondent No.1. 11. In view of the aforesaid, I find that the impugned judgment dated 23.04.2004 of this Court does not suffer from any apparent error or other infirmity within the parameters of Order 47 Rule 1 read with Section 114 of the Code of Civil Procedure so as to call for review thereof. The review application is thus found to be without any merit and is accordingly dismissed.