Private Partition-Non affirmation of partition by the revenue officer will not render a private partition redundant but such affirmation will only determine the rights of an owner in respect of their obligation to pay land revenue to the State.

Hemant Gupta, J.

1. The plaintiffs are in second appeal aggrieved against the judgment and decree passed by the courts below whereby their suit for possession by way of pre-emption was dismissed.

2. One Sumer Singh sold 12 Bighas 14.3/4 biswas of land to Dharam Singh, vendee in R.S.A. No. 2972 of 1979, vide registered sale deed dated 24.3.1974. Similarly, another portion of land measuring 12 Bighas 14.3/4 Biswas of land was sold to Arjun Singh on 24.3.1974 i.e. Subject matter of challenge in R.S.A. No. 2971 of 1979. The-plaintiffs have sought to pre-empt the sales made on 24.3.1974 in favour of Dharam Singh and Arjun Singh on the ground that the plaintiffs are co-sharers in the joint Khata and, thus, have a superior right over the vendee who is a stranger.

3. Both the suits were consolidated and were dismissed. Both the Courts have decided the question of plaintiff being a co-sharer in the context whether the sale is of a share in a the joint Khata or of specific Khasra number. It was held that the sale is of specific khasra number which, according to the recitals in the sale deed, has come to the vendor under private partition and the vendees have acquired right and title under the sale only to the extent of said specific khasra numbers and, therefore, the vendees have not become co-sharers in the joint Khata. It was, thus, concluded that the plaintiffs are co-sharers in the suit land and have no preferential right to pre-empt any of the two sales in question.

4. The appeal against the said judgment and decree was also dismissed. Reliance was placed upon a Full Bench judgment of this Court reported as Lachhman Singh v. Pritam Chand and Anr. (1970) 72 Punjab Law Reporter 341, wherein it was held that if specific khasra number has been sold then the purchaser does not become a co-sharer in the entire land and the sale cannot be pre-empted by the other co-sharers.

5. The present second appeal came up for hearing before this Court on 3.7.1997 when the same was dismissed as it was found that a co-sharer has no longer a right to pre-empt the land in view of the amendment in the Punjab Pre-emption Act, 1913, by way of Haryana Amendment Act No. 10 of 1995. However, in Civil Appeal Nos. 6405 and 6406 of 2003, the said order has been set aside and the matter was remanded back to the High Court for disposal on merits in view of constitutional Bench of Hon ble Supreme Court reported as Shyam Sunder v. Ram Kumar and Anr. , holding that the amendment operates only prospectively and the rights that had arisen prior to the amendment are not affected. The matter has been, thus, placed before me for final disposal, after remand.

6. Learned Counsel for the appellant has vehemently argued that the finding recorded by the Courts below that the plaintiff was not a co-sharer in the land in dispute is not sustainable in view of the later judgment of the Full Bench reported as Bhartu v. Ram Sarup (1981) 83 Punjab Law Reporter 204, which has considered the earlier judgment in Lachhman Singhs case (supra). It has been held in later Full Bench judgment that a sale by a co-sharer is that of a share in the joint holding. The right transferred is share of the joint land and not specific khasra numbers. Therefore, the findings that the plaintiffs are not co-sharers is not sustainable in view of the Full Bench judgment of this Court.

7. The learned Counsel for the respondents has disputed, inter alia, the findings recorded by the courts below that the parties have not affected private partition prior to sale, are based on misreading of evidence and against the known principles of law. The findings on an issue relating to plea of estoppel is also sought to be disputed apart from the argument raised that the plaintiff cannot be now granted decree, since the suit was dismissed by the courts below. The right of the plaintiff to seek possession by way of pre-emption was not subsisting on the date of decree of the learned trial court.

8. The following subs