IMPORTANT POINT
The right of pre-emption is a very weak right, although it is a statutory right. The Court, while granting a relief in favour of a pre-emptor, must bear it in mind about the character of the right, vis-a-vis, the constitutional and human right of the owner thereof.

Headnote:Punjab Pre-emption Act — Sections 4, 5, 6, 10, 19 and 21 — Claim of right of pre-emption — Maintainability — Non-joinder of purchaser of land who was in possession of land — Respondent, owner of land transferred it in favour of respondents 1 and 2 — Respondents 1 and 2 transferred their right and interest in favour of appellant who was a tenant in respect thereof — Respondent 8, daughter of respondent 1, owner of land, claiming a right of pre-emption filed a suit for pre-emption impleading respondents 1 and 2 — A consent decree was passed in terms of a compromise entered into by and between the parties — Allegedly, plaintiff was put in possession of land in execution of decree of pre-emption — A deed of gift was executed by respondent 1 in favour of respondents 3 to 7, sons and daughters of respondents 1 and 2 — They applied for mutation of their names which was granted in their favour — Suit filed by appellant assailing the said order of mutation as also the consent decree — Whether impugned judgment of passing the consent decree is sustainable — (No).
       Held : The fact that Appellant has purchased the suit premises was known to her. Appellant was in possession of the land. The execution of a registered deed of sale shall also be treated as a notice in terms of Section 3 of the Transfer of Property Act, 1882. (Para 8)
       Despite such notice, the appellant was not impleaded as a party. His right, therefore, to own and possess the suit land could not have been taken away without giving him an opportunity of hearing in a matter of this nature. To hold property is a constitutional right in terms of Article 300-A of the Constitution of India. It is also a human right. Right to hold property, therefore, cannot be taken away except in accordance with the provisions of a statute. If a superior right to hold a property is claimed, the procedures therefor must be complied with. The conditions precedent therefor must be satisfied. Even otherwise, the right of pre-emption is a very weak right, although it is a statutory right. The Court, while granting a relief in favour of a preemptor, must bear it in mind about the character of the right, vis-a-vis, the constitutional and human right of the owner thereof. (Para 9)
       The manner in which the purported consent decree was entered into by and between Defendant No.9 on the other hand and Defendant Nos. 1 and 2 is tell tale. Defendant Nos.1 and 2 having transferred their right and interest, could not have conveyed any right in the property of Defendant No.9. No such right existed in them. (Para 10)
       In the consent decree no finding was arrived at as to on what basis the right of Defendant-Respondent No.9 was considered to be a superior right of pre-emption. Defendant No.9 out of the total consideration amount of Rs.30,000/-, deposited only 1/5th thereof, i.e., Rs.6,000/- in the Court. Respondent Nos.1 and 2 neither said to have claimed the said amount nor the rest of the amount of Rs.24,000/- could have been paid in their favour by Defendant No.9. (Para 11)
       If the Defendant Nos. 1 and 2 only could not have accepted the said amount as a valid consideration of passing of a decree of pre-emption in favour of the Respondent No.9; the purported consent decree, in our opinion, was void ab initio. Moreover, in the aforementioned facts and circumstances of this case, the appellant was a necessary party therein. No decree, therefore, could have been passed in his absence. The parties to the said suit and, in particular, Defendant-Respondent Nos. 1 and 2, therefore, by suppression of material facts committed a fraud on the Court in obtaining the said decree. It may be true that collusion between Respondent No.9 and Defendant Nos.1 and 2 was required to be specifically pleaded, but in this case collusion between them is apparent on the face of the records. The circumstances obtaining in the case lead to only one conclusion that the parties were in collusion with each other for the purpose of obtaining the said decree. (Para 12)
       We have noticed hereinbefore that plaintiff was not a co-sharer of her father. She could not have claimed a right of pre-emption on the basis of consanguinity. Had, therefore, an opportunity of hearing been given, the plaintiff-appellant could have shown that she did not have any such right. (Para 16)

JUDGMENT

S.B. Sinha, J. — Interpretation of the provisions of the Punjab Pre-emption Act, 1913 (‘the Act’, for short) is in question in this appeal which arises out of a judgment and order dated 30th May, 2001 passed by the High Court of Himachal Pradesh at Shimla in Regular Second Appeal No.38 of 1998 dismissing the appeal arising from a judgment and decree dated 15.11.1997 passed by the Additional District Judge (I), Una in Civil Appeal No.26/92/91 affirming a judgment and decree dated 7.10.1991 passed by the Sub-Judge, 1st Class, Amb in Civil Suit No.211/85 RBT No.635/89 dismissing the Civil Suit filed by the appellant herein.

2. The fact of the matter is under :

Respondent No.9-Desh Raj was owner of the suit property. Appellant (plaintiff) was a tenant in respect thereof. By reason of a deed of sale dated 27.4.1982, Desh Raj transferred the suit land in favour of Jagat Ram (Respondent No.1-Defendant No.2) and Gurbaksh Kaur, wife of Jagat Ram (Respondent No.2-Defendant No.2). Jagat Ram and Gurbaksh Kaur, in turn, by a registered deed of sale dated 11.10.1982 transferred their right and interest therein in favour of the appellant. Respondent No.8-Chander Bala is the daughter of Respondent No.9-Desh Raj. Claiming a right of pre-emption in terms of the Act, she filed a suit for pre-emption impleading only the respondent Nos. 1 and 2 therein. A compromise was entered into by and between the parties in the said proceedings. A consent decree was passed on the basis thereof by the learned Subordinate Judge, stating :

“The case was taken up on 13.6.1983 on which date both the parties, conceded the rights of each other. The Defendant conceded that the plaintiff has a superior right of pre-emption. The Plaintiff admitted that the suit land was actually sold for Rs.30,000/- by the vendor the Defendant. The counsel for the Plaintiff paid Rs.24,000/- to the Defendant in the court and the remaining Rs.6,000/- has already been deposited in the court as 1/5th of the preemption amount.”

3. Allegedly, she was put in possession of the said land in purported execution of the said decree of pre-emption. A deed of gift was executed by Defendant-Respondent No.1 on 24.1.1984 in favour of Respondent Nos.3 to 7 herein, who are sons and daughters of Respondent Nos.1 and 2. They applied for mutation of their names, which was granted in their favour by an order dated 28.1.1985. Assailing the said order of mutation as also the said consent decree, a suit was filed by the appellant herein. The said suit was dismissed. As indicated hereinbefore, the first appeal as also the second appeal preferred thereagainst have also been dismissed.

4. The original Defendant Nos. 3 to 7 only are before us.

Mr. Manoj Swarup, learned counsel appearing on behalf of the appellant would submit that as the appellant was not impleaded as a party in the said suit, the decree passed therein was not binding on him. In any event, the learned counsel would contend that collusion on the part of Defendant Nos.1 and 2 and Defendant Nos.8 and 9 is evident from the fact that immediately after passing of the decree in the said suit, a deed of gift was executed, the consent decree should have been set aside.

5. The Punjab Pre-emption Act confers a special right of pre-emption on the persons specified therein. Right of pre-emption has been defined in Section 4 of the Act to mean the right of a person to acquire agricultural land or village immovable property or urban immovable property in preference to other persons, and it arises in respect of such land only in the case of sales and in respect of such property only in the case of sales or of fore-closures of the right to redeem such property.

Section 5 of the Act provides that there would be no right of pre-emption in certain cases.

Section 6 of the Act states that a right of pre-emption exists in respect of village immovable property and in respect of agricultural land, but every such right shall be subject to all the provisio

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2007 Supreme(SC) 221

IMPORTANT POINTThe right of pre-emption is a very weak right, although it is a statutory right. The Court, while granting a relief in favour of a pre-emptor, must bear it in mind about the character of the right, vis-a-vis, the constitutional and human right of the owner thereof.

Cases Referred (2)

IMPORTANT POINT
The right of pre-emption is a very weak right, although it is a statutory right. The Court, while granting a relief in favour of a pre-emptor, must bear it in mind about the character of the right, vis-a-vis, the constitutional and human right of the owner thereof.