IMPORTANT POINT
Pre-emption--Suit cannot be said to be bad for partial pre-emption

Rakesh Kumar Garg, J.

1. By this judgment, two identical appeals i.e. RSA No. 2371 and 2377 of 2007 shall stand disposed of as identical question of law on similar facts is said to have arisen out of the impugned judgment and decrees of the Courts below. However, for the sake of convenience, necessary facts for disposal of these appeals have been culled out from RSA No. 2371 of 2007.

2. The appellant filed a suit for possession by way of preemption against the defendants in regard to the half share of the land measuring 24 kanals comprised in Khewat No. 218, Khatoni No. 273 to 275, rect. and killa Nos. 19 (16/1, 16/2, 14, 15) situated at village Halalpur, as per jamabandi for the year 1987-88.

3. The case of the plaintiff, in brief, was that defendant No. 2 Kitabo sold her share of the land detailed above along with all rights appurtenant thereto, for Rs. 1,00,000/- vide registered sale deed dated 20.5.1992 to defendant No. 1 but in order to defeat the possible right of preemption the vendee-defendant, in connivance with the vendor got a fictitious sum of Rs. 1,65,000/- incorporated in the sale deed as the sale price. No notice of the sale in question was ever served upon him. He being a co-sharer in the joint khewat of the suit land had got the superior right to pre-empt this sale as the defendant was a stranger. The latter was asked many times to concede his superior right of pre-emption over the suit land but he declined and hence, the suit.

4. Upon notice, defendant No. 1 appeared in Court and filed his written statement negating the allegations of the plaintiff. The superior right of the plaintiff to pre-empt this sale was also disputed. It was further pleaded that the transaction took place for Rs. 1,65,000/- factually. It was also pleaded that he, besides the sale price, also incurred the stamp and registration charges . The defendant also took the additional plea that the land in dispute had since been partitioned and the plaintiff was no more a co-sharer in it. Dismissal of the suit was prayed.

5. Defendant No. 2 did not appear in the Court despite service and was proceeded against ex parte vide order dated 17.2.1993 passed by the then Senior Sub Judge, Sonepat.

6. Replication to the written statement was filed controverting the pleas of the defendant and reasserting his stand. Both the parties led their respective evidence in support of their claim.

7. The trial Court decreed the suit for possession on payment of Rs. 1,87,625, less 1/5th pre-emption amount already deposited.

8. Appeal filed by the defendant against the aforesaid judgment and decree was accepted by Sh. P.L. Goyal, the then Additional District Judge, Sonepat vide judgment and decree dated 1.3.1996 setting aside the decree of the trial Court.

9. The plaintiff filed regular second appeal before this Court, which, by its order dated 7.2.2006 set aside the judgment and decree of the Lower Appellate Court and remanded the case to the Lower Appellate Court for fresh decision on merits in accordance with law. After remand of the appeal, defendant No. 1 (now the appellant) was allowed to lead additional evidence and he was permitted to produce on record copy of sale deed dated 20.5.1992 executed by Kitabo in favour of the appellant. The plaintiff-respondent was also allowed to lead additional evidence who produced copy of plaint Ex.RA, copy of judgment of the trial Court Ex.RB in suit titled as "Balbir Singh v. Jai Kishan and Masri" and copy of order Ex.RC passed by the Lower Appellate Court before remand. The Lower Appellate Court vide impugned judgment and decree dated 14.5.2007 affirmed the findings of the trial Court and dismissed the appeal. While dismissing the appeal, the Lower Appellate Court observed as under :-

"After going through the pleadings of the parties, the copy of sale deed Ex.P2 and the facts of the above cited authorities, which are distinguishable, I do not find enough merit in the arguments of the counsel for the appellant/defend