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PUNJAB & HARYANA HIGH COURT
Mehar Singh, D.K.Mahajan and Bal Raj Tuli JJ.
Lachhman Singh Sunder Singh
Versus
Pritam Chand Kirpa Mal
Second Appeal No. 532 of 1968,
Decided On : DECEMBER 22, 1960
PRE-EMPTION - PREFERENTIAL RIGHT - CO-SHARER - SALE OF SHARE OF JOINT LAND - PURCHASE OF SPECIFIC SHARE OF DEFINED KILLAS OF JOINT LAND - WHETHER PURCHASER BECOMES CO-SHARER IN JOINT LAND - PUNJAB PRE-EMPTION ACT, 1913 (PUNJAB ACT 1 OF 1913), SECTION 15 (1) (B), FOURTHLY.
Fact of the Case:
Plaintiffs, co-sharers in Khewat Nos. 171 and 172, purchased a share of Harindar Singh co-sharer in Killa numbers of rectangles 6 and 13. Defendant purchased the entire area of Killa numbers of rectangle 16 from Ajmer Singh co-sharer. Plaintiffs claimed a preferential right of pre-emption under Section 15 (1) (b), Fourthly, of the Punjab Pre-emption Act, 1913, on the ground that they had become co-sharers of the land sold by Ajmer Singh to the defendant.
Finding of the Court:
The plaintiffs have one-fourth share of Harindar Singh co-sharer in Khewat No 171, rectangle 6 and Khewat No, 172, rectangle 13, of the Jamabandi of 1960-61, copies Exhibits P. 7 and P. 8. The total holding of the three co-sharers, namely, Ajmer Singh. Harindar Singh, and Rajindar Singh, consists of much more area and has within it rectangle 16 of Khewats Nos. 171 and 172 of the same Jamabandi So the plaintiffs have one-fourth share of rectangles 6 and 13 of the joint land of those three co-sharers, but they have not a fractional or a proportional share in the total joint holding of those co-sharers, including rectangle 16 of Khewat Nos. 171 and 172. So the plaintiffs have a fractional share in denned and specific Killas of joint holding of those co-sharers, but not in the total area of their joint land.
Issues: Whether the plaintiffs have become co-sharers in the joint land of the three original co-sharers and thus have a preferential right of pre-emption in regard to the sale made by Ajmer Singh co-sharer to Lachhman Singh defendant?
Ratio Decidendi: A sale by a co-sharer of a specific piece Or plot of land out of joint land or property does not make the purchaser or the vendee a co-sharer with other co-sharers, according to the first case, but where such a purchaser or vendee takes, on sale, a fractional share of a co-sharer in the joint land or property, then he comes to hold the land along with the other co-sharers in the fractional proportion of the whole which he has purchased, and this is the second case. The present case is neither the one nor the other. Here the plaintiffs have been purchasers of a fractional share of defined Killas of land in rectangles 6 and 13, but not a fractional share in the whole of the joint land of the three original co-sharers including rectangle 16.
Final Decision: The appeal of the defendant is accepted and, reversing the decree of the lower appellate Court, the decree of the trial Court is restored, so that the suit of the plaintiffs remains dismissed, with costs throughout.
Mehar Singh, J.
1. This second appeal arises out of a pre-emption Buit by Pritam Chand and Wazir Chand, plaintiffs, against Lachhman Singh defendant, and concerns land situate within the area of village Khamano in Tehsil Samrala of Ludhiana District.
2. There is the Jamabandi of 1960-61, copies. Exhibits P-7 and P-8, of Khewats Nos. 171 and 172, showing Rajinder Singh and Harindar Singh, real brothers, in possession of half share, and Ajmer Singh Sn the remaining half share of rectangles 6, 12, 13 and 16, among others, in Khewat No. 171, and of rectangles 13 and 16 in Khewat No. 172. There is the copy of the Jamabandi of 1952-53, Exhibit P-2, in which those three co-sharers are shown owners of Khewat No. 132/146, among others, rectangles 6, 12, 13 and 16- Apparently the Khewat numbers changed in the subsequent Jamabandi, but the rectangle numbers continued to be the same and so also, it follows, the Killa numbers in each rectangle.
3. On August 20, 1960, by registered sale-deed, Exhibit P-1, Harindar Singh co-sharer sold 48 Kanals and 2 Marias of land to the plaintiffs. The description of the land sold by him given in this sale-deed is that he was selling his share of 46 Kanals and 12 Marias, out of 186 Kanals and 8 Marias comprising of rectangle 6, Killas Nos. 16 and 25, and rectangle 13, Killas Nos. 1 to 19 and 22 to 26, one-fourth share, and again 1 Kanal and 10 Marias, out of 7 Kanals and 10 Marias comprising of rectangle 13, Killa No. 20, one-fifth share. So Harinder Singh co-sharer sold two Killas out of rectangle 6, and 24 Killas out of rectangle 13, in the share as already given. With this sale-deed is attached a copy of the Jamabandi of 1952-53, Exhibit P. 2, which shows that rectangles 6 and 13 are in Khewat No. 132/146. In the Jamabandi of 1960-61, copies Exhibits P. 7 and P. 8, rectangle 6 is in Khewat No. 171, and rectangle 13 in Khewat No. 172.
4. On February 2, 1965, another co-sharer Aimer Singh by registered sale-deed, Exhibit D. 1, sold to Lachhman Singh defendant, 103 Kanals and 8 Marias of land out of rectangle 16, Khewats Nos. 171 and 172 of the Jamabandi of 1960-G1, copies Exhibits P. 7 and P. 8. In that sale-deed Aimer Singh co-sharer referred to rectangles 12, 13 and 16 and also to the specific Killas from each rectangle of which the total area came to 243 Kanals and 2 Marias, and of which he sold 103 Kanals and 8 Marias from rectangle 16, Killas Nos. 6, 7, 8, 13, 14, 15, 17/2, 16, 17/1, 18, 19, 23, 24 and 25. Rectangle 16 appears in Khewats Nos. 171 and 172 according to the Jamabandi of 1960-61. Killas Nos. 6, 7, 8, 13, 14, 15 and 17/2 are in Khatauni No. 251 of Khewat No. 171, and Killas Nos. 16, 17/1, 18, 19, 23, 24 and 25 are in Khatauni No. 258 of Khewat No. 172. So that the land from rectangle 16 sold by Aimer Singh to the defendant came from Khewats Nos. 171 and 172. In Khewat No. 171 also come, according to the same Jamabandi, rectangles 6, 12 and 16, and in Khewat No. 172 come rectangles 12, 13 and 16.
5. The plaintiffs sought to pre-empt the sale in favour of Lachhman Singh defendant claiming a preferential right of pre-emption as co-sharers according to Section 15 (1)(b). Fourthly, of the Punjab Pre-emption Act, 1913 (Punjab Act 1 of 1913), on the ground that by the earlier sale in their favour. Exhibit P. 1, by Harindar Singh co-sharer, they had become co-sharers of the land sold by Ajmer Singh co-sharer to the defendant, being co-sharers with him in the same Khewat.
6. It will be seen that Ajmer Singh, Harindar Singh and Rajindar Singh have been co-sharers of the land of Khewat No. 132/146 of the Jamabandi of 1952-53, equivalent to Khewats Nos. 171 and 172 of the Jamabandi of 1960-61. They were co-sharers of rectangles 6, 12, 13 and 16, apart from other land, and while Harindar Singh co-sharer sold land to the plaintiffs by an earlier sale-deed in their favour out of rectangles 6 and 13, by a subsequent sale Ajmer Singh co-sharer sold land to the defendant out of rectangle 16. So wh
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