1. Suit for pre-emption under the Punjab Pre-emption Act — dispute over preferential right to purchase land by a co-sharer — issue of improved status through reclamation. (Para 1 , 2 )
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1993 Supreme(SC) 1107
SUPREME COURT OF INDIA
M.N.Venkatachaliah, C.J.I., R.M.Sahai, S.P.Bharucha, JJ.
Babu Ram
Versus
Prem Singh
Case No. : 1055 of 1991
Date of Decision : 11/24/93
Improvement of status through land reclamation performed after the filing of a suit for pre-emption does not affect the maintainability of the suit. Additionally, the right of pre-emption is not automatically barred for those who are strangers to the family or outsiders to the khata.
Headnote:(A) Punjab Pre-emption Act - Improvement of status - Reclamation of land - Maintainability of suit - If reclamation of land is performed after the filing of a suit for pre-emption, such improvement of status does not affect the maintainability of the suit. (Para 3)
(B) Pre-emption - Right of stranger to family or outsider to khata - The contention that a stranger to the family or an outsider to the khata cannot file a suit for pre-emption is not sustainable, particularly when based on precedents concerning assignees of pre-emption decrees where the right was held to be personal. (Para 4)
Facts of the case:
A co-sharer purchased the share of another co-sharer. Subsequently, a third party purchased the share of a deceased co-sharer's successor. The first purchaser filed a suit for pre-emption. The lower courts decreed the suit except for a portion of land reclaimed by the purchaser. The appellant contended that since the land was reclaimed and no partition had occurred, the status was improved for the entire land, rendering the suit dismissible. It was further argued that a stranger to the family or an outsider to the khata is barred from filing a suit for pre-emption.
Findings of Court:
The court found that the reclamation of the land took place after the suit was filed. Consequently, the improvement of status did not impact the maintainability of the suit. Regarding the status of the plaintiff as a stranger, the court found the cited precedent inapplicable as it pertained specifically to an assignee of a decree.
Issues: Whether the improvement of status through reclamation of land after the filing of a suit for pre-emption renders the suit non-maintainable, and whether a stranger to the family or outsider to the khata is barred from filing a suit for pre-emption.
Ratio Decidendi: Improvement of status via reclamation performed after the institution of a pre-emption suit does not affect the maintainability of said suit. Furthermore, the personal nature of pre-emption rights in the context of decree assignees does not automatically bar outsiders to the khata from exercising pre-emption rights.
Result: Appeal fails and is dismissed.
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Table of Contents
2. Whether reclamation of part land improves status for the entire holding to dismiss pre-emption — whether strangers to the family or khata can file pre-emption suits. (Para 3 , 4 )
3. Reclamation performed after the filing of a suit does not affect maintainability; the right of pre-emption is a personal right. (Para 3 , 4 )
4. Improvement of status through reclamation occurring after the institution of a suit for pre-emption does not render the suit non-maintainable. (Para 3 )
5. Appeal dismissed; no order as to costs. (Para 5 )
6. Does reclamation of land after filing a suit for pre-emption affect the suit's maintainability?
No, if the reclamation and subsequent improvement of status occur after the suit has been filed, it does not affect the maintainability of the suit. (Para 3 )
7. Is the right of pre-emption considered a personal right?
Yes, the court observed that the right of pre-emption is a personal right. (Para 4 )
(1) THE short question that arises for consideration in this appeal directed against the judgment and decree of the Punjab and Haryana High court is, if a suit for pre-emption is liable to be dismissed if the vendee-defendant improves his status as provided in the Punjab Pre-emption Act,
(2) AMAR Singh and Kehar Singh were admittedly co-sharers. In 1976, plaintiff-respondent purchased share of Amar Singh and became a co-sharer. Kehar Singh died in 1977. His share was purchased from his successor by the defendant-appellant in 1981. Soon thereafter suit was filed by the respondent claiming that he being a co-sharer had a preferential right to purchase the land. The suit was decreed, except for a part of the land as it was found that it was reclaimed by the appellant and he had improved his status. The decree was affirmed by the first appellate court and the High court.
(3) ON the finding that a portion of the land has been reclaimed, which finding has become final, the learned counsel for the appellant urged that the effect of reclaiming was that the appellant improved his status and since there was no partition or division he should be deemed to have improved his status for the entire land and the suit for pre-emption was liable to be dismissed. It is not necessary to decide this question as it is not disputed that if reclamation had been done after filing of the suit it would not affect its maintainability. The High court and the first appellate court have found it is a fact that the reclamation was done after January 1982 that is after the suit was filed. The submission in view of these findings which could not be assailed is devoid of any merit.
(4) THE learned counsel then urged that a stranger to the family or an outsider to the khata cannot file a suit for pre-emption. Reliance was placed on certain observations in Bhoop v. Matadin Bhardwaj. In our opinion, the observations in the judgment are not at all helpful. It was a case of assignee of a pre-emption decree. In that connection the court observed that the right of preemption was a personal right.
(5) IN the result, this appeal fails and is dismissed. But there shall be no order as to costs.
