1. Suit for pre-emption of agricultural land where the subject property was replaced by other land through consolidation proceedings under the Patiala and East Punjab States Union Holdings Act. (Para 1 , 2 )
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1966 Supreme(SC) 95
SUPREME COURT OF INDIA
P.B. GAJENDRAGADKAR, C.J.I., K.N. WANCHOO, M. HIDAYATULLAH, J.C. SHAH AND S.M. SIKRI, JJ.
Sundar Singh and others, Appellants
Versus
Narain Singh and others, Respondents.
Civil Appeal No. 822 of 1963, D/- 11-3-1966.
Advocates appeared
Mr. Bishan Narain, Senior Advocate, (Mr. B. P. Maheswari, Advocate, with him), for Appellants, (Nos. 1 to 3 and 5 to 10); Mr. M. V. Goswami, Advocate, for Appellant (No. 4); M/s. Bhawani Lal, E. C. Agarwala, Champat Rai and P. C. Agarwala, Advocates, for Respondents (Nos. 1 (i) to 1 (vi)).
Advocates:
B.P.MAHESHVARI, BHAVANI LAL, BISHAN NARAIN, CHAMPAT RAI, E.C.AGARWAL, M.V.GOSWAMY, P.C.AGRAWAL
B.P.MAHESHVARI, BHAVANI LAL, BISHAN NARAIN, CHAMPAT RAI, E.C.AGARWAL, M.V.GOSWAMY, P.C.AGRAWAL
The right of pre-emption is an incident of property that attaches to the land. Under Section 24 of the Consolidation Act, land allotted in lieu of an original holding carries the same rights and obligations, meaning the disability of pre-emption extends to the newly allotted land.
Headnote:(A) Patiala and East Punjab States Union Holdings (Consolidation and Prevention of Fragmentation) Act - Section 24 - Right of pre-emption - Land allotted in consolidation proceedings - Whether the right of pre-emption can be enforced against land allotted in lieu of the land which was the subject-matter of the sale-deed - Section 24 provides that a land-owner or tenant at will shall have the same right in the land allotted as he had in his original holding - This provision implies that obligations and disabilities attached to the original holding also attach to the allotted land - Right of pre-emption is an incident of property and attaches to the land itself - Therefore, if the original holding was subject to pre-emption, the land allotted in lieu thereof remains subject to the same disability. (Paras 3, 5, 6)
(B) Patiala and East Punjab States Union Holdings (Consolidation and Prevention of Fragmentation) Act - Section 25 - Lease, mortgage or other encumbrance - Specific provision for encumbrances to attach to allotted land does not negate the application of Section 24 to incidents of ownership such as pre-emption. (Para 7)
(C) Consolidation proceedings - Allotment of land - Where a vendee is allotted land in lieu of both previous holdings and newly purchased land, the portion pertaining to the purchased land can be determined based on the valuation used for allotment. (Para 8)
Facts of the case:
Agricultural land was sold to several vendees. Subsequently, consolidation proceedings took place, and the vendees were allotted different land in lieu of the land purchased. The plaintiffs, being collaterals and co-sharers, filed a suit for pre-emption seeking the land allotted to the vendees in consolidation proceedings.
Findings of Court:
The court held that the right of pre-emption, being an incident of property that attaches to the land, follows the land even after consolidation. Under Section 24 of the Act, the land allotted in lieu of the original holding carries the same rights and obligations.
Issues: Whether a suit for pre-emption is maintainable with respect to land obtained by vendees during consolidation proceedings in lieu of the land which was the subject-matter of the sale-deed.
Ratio Decidendi: Section 24 of the Act preserves both rights and obligations of the original holding. Since the right of pre-emption is a limitation or disability that runs with the land, the land allotted in lieu of the original holding remains subject to the same disability of pre-emption.
Result: Appeal dismissed.
Legal Category Hierarchy
Table of Contents
2. Whether a pre-emptor can follow land allotted during consolidation proceedings in lieu of the original land sold, and whether such land is distinguishable for pre-emption. (Para 2 )
3. Section 24 preserves both rights and obligations; thus, the disability of pre-emption attaching to original land also attaches to land allotted in lieu during consolidation. (Para 3 , 5 , 6 , 7 )
4. The right of pre-emption, being an incident of property and a disability on ownership, runs with the land and attaches to land allotted under consolidation proceedings. (Para 3 , 5 , 6 )
5. Appeal dismissed; the decree for pre-emption regarding land allotted in lieu of the sold property is upheld. (Para 10 )
6. Does the right of pre-emption attach to the land itself?
Yes, the right of pre-emption is an incident of property that attaches to the land, imposing a limitation or disability on ownership that runs with the land. (Para 3 )
7. How does Section 24 of the Patiala and East Punjab States Union Holdings Act affect pre-emption rights during consolidation?
Section 24 ensures the land-owner has the same rights and obligations in the allotted land as in the original holding. Therefore, if the original land was subject to pre-emption, the allotted land remains subject to that disability. (Para 5 , 6 )
8. Does Section 25 of the Act, which deals with leases and mortgages, exclude pre-emption rights from surviving consolidation?
No. Section 25 is necessary for leases and mortgages because they are specific encumbrances. Pre-emption is an incident of ownership and a disability that continues via Section 24. (Para 7 )
9. Can pre-emption be enforced if the allotted land is a mix of previously owned land and the sold land?
Yes, because land is valued for allotment during consolidation, it is possible to distinguish the portion of the allotted land that corresponds to the property subject to pre-emption. (Para 8 )
Judgement
WANCHOO, J.: This is an appeal by special leave from the decree of the Punjab High Court in a suit brought by the plaintiffs-respondents for pre-emption. The appellants are vendees to the sale which was pre-empted. The facts found by the courts below are these. The property in suit consisted of agricultural land as well as some baras in village Jalalpur. Punnu Singh and Mansha Singh who were also parties to the suit as defendants sold the property in suit on January 15, 1955 to the appellants. Thereafter consolidation proceedings took place in this village and came to an end before the present suit was filed on January 14, 1956. Of the vendees, six had no share in the village from before while four already had some share in the village. As a result of the consolidation proceedings, six of the vendees who had no share in the village from before were allotted other land in place of the land which they had purchased under the sale-deed. The other four vendees who had some share in the village from before were allotted land in two blocks in lieu of the land they had in the village from before as well as the land which they had purchased by the sale-deed in question. The plaintiffs-respondents instituted the suit on the basis of their being collaterals and co-sharers and wanted that they should be given out of the land allotted to the vendees in consolidation proceedings such land as they would be entitled to after pre-emption of the sale in question.
2. The suit was resisted by the appellants on a number of grounds. The main ground of defence with which we are concerned in the present appeal was whether the suit was maintainable with respect to the land which had been obtained by the vendees during consolidation proceedings in lieu of the land which was the subject-matter of the sale-deed. The trial court held in favour of the plaintiffs-respondents and granted a decree for pre-emption. On appeal to the High Court by the vendees, the High Court held on the basis of S. 24 of the Patiala and East Punjab States Union Holdings (Consolidation and Prevention of Fragmentation) Act, No. V of 2007 Bk. (hereinafter referred to as the Act), that it was open to the pre-emptor to follow the land which had been given to the vendees in consolidation proceedings in lieu of the land which was the subject-matter of the sale-deed. Further in the High Court another point was raised on behalf of four of the appellants who had land from before in the village and it was urged that in their case it was not possible to distinguish which land had been allotted to them in place of the land sold and therefore no pre-emption decree should be granted. This argument was also rejected by the High Court, and the appeal was dismissed. The High Court having refused the certificate, the appellants applied and obtained special leave from this Court; and that is how the matter has come before us.
3. The main question that has been argued before us is that the suit is not maintainable as it is not open to the pre-emptor to follow the land which might have been obtained by the vendees in lieu of the land actually sold to them. The answer to this question depends upon the interpretation of S. 24 of the Act in the background of the law of pre-emption. In Audh Behari Singh v. Gajadhar Jaipuria , 1955-1 SCR 70, this Court held that-
"The correct legal position seems to be that the law of pre-emption imposes a limitation or disability upon the ownership of a property to the "extent that it restricts the owner s unfettered right of sale and compels him to sell the property to his co-sharer or neighbour as the case may be.....The crux of the whole thing is that the benefit as well as the burden of the right of pre-emption run with the land and can be enforced by or against the owner of the land for the time being although the right of the premptor does not amount to an interest in the land itself.............The right of pre-emption is an incident of property and attac
