Back
1982 Supreme(P&H) 277
PUNJAB & HARYANA HIGH COURT
Rajendra Nath Mittal, J.
Mahesh Pal
Versus
Desh Raj Singhand
Second Appeal No. 522 of 1982,
Decided On : AUGUST 19, 1982
The sale of a specific portion of land described by particular khasra numbers by a co-owner out of the joint khewat is a sale of share out of joint land and pre-emptible under Sec. 15(1)(b), Punjab Pre-emption Act.
Headnote:
PRE-EMPTION - PUNJAB PRE-EMPTION ACT, 1913 - SEC. 15(1)(B) - SALE OF SPECIFIC PORTION OF LAND BY CO-OWNER - CO-SHARER'S RIGHT OF PRE-EMPTION - SALE OF SPECIFIC PORTION OF LAND DESCRIBED BY PARTICULAR KHASRA NUMBERS BY A CO-OWNER OUT OF THE JOINT KHEWAT IS A SALE OF SHARE OUT OF JOINT LAND AND PRE-EMPTIBLE UNDER SEC. 15(1)(B).
Fact of the Case:
Plaintiffs purchased a specific khasra number from co-sharers of a joint khewat. Subsequently, one of the co-sharers sold a portion of the joint khewat to the defendants. Plaintiffs claimed a superior right of pre-emption as co-sharers in the khewat.
Finding of the Court:
The court held that the plaintiffs, by purchasing a specific khasra number, became co-sharers in the khewat only to the extent of the purchased land and had a superior right of pre-emption regarding the land sold by the co-sharer in the same rectangle.
Issues: Whether the plaintiffs, by purchasing a specific khasra number from co-sharers of a joint khewat, became co-sharers in the entire khewat and had a superior right of pre-emption over the entire khewat.
Ratio Decidendi: The court relied on the Full Bench decision in Lachhman Singh v. Pritam Chand, which held that the purchase of a specific portion of land by a co-owner does not make the purchaser a co-sharer in the entire khewat and does not confer a right of pre-emption over the entire khewat.
Final Decision: The court partly allowed the appeal, modifying the decree of the first appellate court and decreeing the plaintiffs' suit only with respect to the specific portion of the land sold by the co-sharer in the same rectangle as the land purchased by the plaintiffs.
1. This second appeal has been filed by Mahesh Pal and Danesh Pal, defendants 1 and 2, against the judgment and decree of the Additional District Judge, Faridabad, D/-9-2-1982.
2. Briefly, the facts are that Sukhi defendant 3 along with Rambula, Tek Chand and Chhida was co-sharer and in possession of agricultural land bearing khewat No. 69, Khasra Nos. 37/8 (8-0), 30/12 (3-8), 30/13 (8-0). 30/14/1 (5-0), 30/18 (8-0), 30/19 (2-18), 36/23 (7-9), 36/24 (4-0), 36/26 (0-12), 37/4/1 (1-0), 37/4/2 (5-11), 37/6 (1-13), 37/7/1 (7-12), 37/7/2 (0-7) and 37/14 (8-0), situated within the revenue limits of village Sotai, Tehsil Ballabhgarh, District Faridabad. The plaintiffs had purchased khasra No. 37/4 out of the above joint khewat of the co-sharers from Rambula, Tek Chand and Chhida vide registered sale deed D/-10-6-1977. Thereafter, Sukhi sold 11/72 Share out of the above khewat to Mahesh pal and Danesh Pal defendants 1 and 2 for a consideration of Rs. 22,000.00 vide sale deed D/-29-3-1979. The plaintiffs claimed that they were co-sharers in the land which was sold by Sukhi defendant in favour of defendants 1 and 2, and, therefore, had a superior right of pre-emption. They also challenged the consideration. However, this is not relevant for the purpose of deciding the appeal.
3. Defendants 1 and 2 contested the suit and controverted the allegations of the plaintiffs. They inter alia pleaded that the plaintiffs were not co-sharers in the khewat as they had purchased a specific khasra number from Rambula etc. and, therefore, they had no superior right of pre-emption. Several other pleas were taken by them but they do not survive in this appeal.
4. The learned trial Court held that the plaintiffs were not proved to be co-sharers in the khewat in dispute at the time of sale and, therefore, they had no superior right of pre-emption. In view of the said finding, it dismissed the suit of the plaintiffs. On appeal, the Additional District Judge, Faridabad, reversed that finding and held that the plaintiffs had become co-sharers in the joint khata vide sale deed dated 10th June, 1977, and, therefore, they were entitled to pre-empt the sale. Consequently, he accepted the appeal and decreed the suit of the plaintiffs for possession by pre-emption on payment of Rs. 22,000.00 less 1/5th pre-emption money already deposited, plus stamp charges of Rs. 2,200.00 as well as registration charges of Rs. 233/-. Defendants 1 and 2 have come up in second appeal to this Court.
5. The only question that arises for determination is as to whether the appellants by purchasing khasra No. 37/8 out of khewat No. 69 from Rambula etc., vide sale deed Dt.10th June, 1977 became co-sharers in the khewat. The learned counsel for the appellants has vehemently contended that by purchasing Khasra No. 37/8 the plaintiff respondents did not become co-sharers in Khewat No. 69 in which the said Khasra number was situated. In support of his contention, he places reliance mainly on a Full Bench judgment of this Court in Lachhman Singh V/s. Pritam Chand, (1970) 72 Pun LR 341 : (AIR 1970 Punj 304). On the other hand, Mr. Gour has argued that by purchasing the said Khasra number, they had become cc-sharers in Khewat No. 69 and, therefore, they had superior right of pre-emption. He has referred to one Full Bench judgment of this Court in Bhartu V/s. Ram Sarup, 1981 Pun LJ 204 and another Full Bench judgment of Jammu and Kashmir High Court in Jabar Bhat V/s. Mst. Ashmi, AIR 1972 J and K 28. He further urges that in view of the observations in the two Full Benches, it cannot be said that the case referred to by the learned counsel for the appellants was correctly decided.
6. I have heard the learned counsel at a considerable length and given due consideration to their arguments. The question is very ticklish and in order to decide the same, it will be necessary to notice in some detail the Full Bench cases referred to by them. In Lachhman Singh s case (AIR 1970 Punj 304) (supra),
