IMPORTANT POINT
Right to pre-emption – Right of pre-emption in respect of urban immovable property vests in tenant – Land and immovable property are two different terms.

JUDGMENT :

RAJESH BINDAL, J.

1. Leave granted.

2. The defendants are before this Court challenging the concurrent findings of fact recorded by all the courts below.

3. It is a case in which the respondents had filed a suit¹ [Civil Suit No. 309] on 25.01.1984 for possession by pre-emption of the plot measuring 719 square yards, situated at Light Railway Bazar, Jagadhri (hereinafter referred to as ‘the property in dispute’). The Trial Court² [Additional Senior Sub Judge, Jagadhri] decreed the suit. The judgment and decree³ [Judgment and decree dated 27.05.1989] of the Trial Court was upheld upto the High Court.⁴ [High Court of Punjab and Haryana at Chandigarh]

4. The facts in brief are that the respondents (plaintiffs in the suit) claimed themselves to be the tenants in the property in dispute since 1949. The property in dispute was owned by Anarkali and others. The same was sold by the owners thereof to the appellants (defendants in the suit) by way of a registered sale-deed dated 25.01.1983. The respondents filed the suit exercising their right of pre-emption of the sale claiming that in terms of the provisions of the 1913 Act⁵ [The Punjab Preemption Act, 1913], they had preferential right to purchase the property. They offered to pay same sale consideration of Rs. 43,000/-. The Trial Court decreed the suit subject to payment of Rs. 50,238/- to the vendee after deducting 1/5th of the pre-emption amount deposited in the Court at the time of filing of the suit. The amount so directed by the Trial Court was including stamp duty, registration fee and miscellaneous expenses incurred on registration of the sale-deed.⁶ [Sale-deed dated 25.01.1983]

5. Challenging the judgment of the High Court, learned counsel for the appellants submitted that in view of the notification 08.10.1985, issued by the State in exercise of powers under section 8(2) of the 1913 Act, the suit filed by the respondents deserved to be dismissed as the right of preemption did not exist for sale of land falling in the areas of any municipality in Haryana. It is not a matter of dispute that the sale in question was pertaining to the property located within the municipal limits of Jagadhri (State of Haryana). In terms of the Constitution Bench judgment of this Court in Shyam Sunder and Others vs. Ram Kumar and Another, (2001) 8 SCC 24 the right of pre-emption has to exist on the date of registration of the sale-deed, on the date of filing of suit and also on the date the same is decreed by the first Court. In the case in hand, no doubt, the suit was pending when the aforesaid notification was issued, however, the Trial Court had decided the same on 27.05.1989, hence the decree could not have been passed. The courts below have failed to appreciate that aspect of the matter.

6. He further submitted that the sale deed was registered in favour of the appellants on 25.01.1983, the suit having been filed on 25.01.1984 was time-barred as the limitation thereof is one year, which expired on 24.01.1984. It was further argued that the courts below have wrongly appreciated the issue regarding the custom of pre-emption prevailing in the area. It was not a matter of dispute that the area in which the property is situated, falls within the extended area of municipal limits of Jagadhri. Though some evidence was led pertaining to the custom prevailing in the urban area of municipal limits of Jagadhri, however, for the extended area, no evidence was produced. In terms of the judgment of the High Court in Sandeep Bansal vs. M.L. Hans and Others, R.S.A. No. 2109 of 1998 decided on 24.08.2009, the same custom cannot be relied upon for any transaction of sale in the extended area.

7. On the other hand, learned counsel for the respondents submitted that though issue of limitation was raised by the appellants before the Trial Court, however, the same was not seriously contested for the reason that the suit filed by the respondents was within limitation. The Schedule attached to the 1963 Act⁷ [The