2008(1) LAW HERALD (P&H) 772
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Satish Kumar Mittal
R.S.A. No. 2579 of 1993
Lilu Ram
v.
Smt. Sohni
{Decided on 10/10/2007}
(i) The amending Act is prospective in operation and it does not affect the rights which had accrued to the parties to the pre-emption suit on the date of the suit or on the date of passing of the decree by court of first instance.
(ii) Therefore, it has been held that the provisions of the Amending Act are not applicable on the pending appeals. Accordingly, these three appeals are to be considered and decided on the basis of the law existing prior to the aforesaid amendment.
(iii) The right of pre-emption under statutory law has been held to be mandatory and not mere discretionary.
(iv) If a person who is a co-sharer in the joint land, establishes that on the date of the sale on the date of filing of the suit and on the date of decree he was a co-sharer in the joint land from where a stranger to the joint khewat has purchased some portion of the land his suit for pre-emption is to be decreed.
(v) There is no such law which deprives the plaintiff from pre empting the sale on the basis of co-sharership on the ground that she has inherited the property from her husband and the vendors are brothers of her husband. (Para 12, 13 and 14)
Satish Kumar, Mittal J.:-This judgment shall dispose of three Regular Second Appeals bearing Nos.2579 of 1993, 2580 of 1993 and 512 of 1994. These appeals have been filed by same defendants against the judgments and decree passed in three different suits filed by respondent Smt. Sohni for pre-empting three sale deeds in favour of the defendants.
2. In the present case, the defendant-appellants purchased 19 kanals 6 marlas of land from two co-sharers Mahabir and Babu Ram in the joint khewat Nos. 41,42 and 111 situated in village Chhatarian vide registered sale deed dated 12.6.1989. They also purchased 9 kanals 14 marlas of land from Nand Lal, who was a co-sharer in the same joint khewat vide registered sale deed dated 17.8.1989. They further purchased 29 kanals 1 marIa of land from Smt. Bhagwanti and Smt. Santo, daughters of and Raju son of Phool Chand.
3. The respondent-Smt. Sohni filed three different suits for possession by way of pre-emption under Section 15 of the Punjab Pre emption Act, 1913 for pre-empting above-said three sales of the land made by co-sharers Mahabir, Babu Ram, Nand Lal, Smt. Bhagwanti, Smt. Santo and Raju on the ground that the plaintiff was having preferential right of pre-emption being co-sharer in the joint khewat from which the above-said land was sold by co-sharers to the defendant-appellants, who are totally strangers to the joint khewat.
4. The defendant-appellants contested the suit, inter-alia, on the grounds that in the revenue record the plaintiff has been wrongly shown as co-sharer. The sale deeds were registered with the consent of the plaintiff, therefore, she is not entitled to pre-empt these sales. It is further contended that the plaintiff has inherited the land in the joint khewat from her husband Khiali Ram, who was the brother of the father of the vendors, therefore, the plaintiff has no right of pre-emption. The possession of the suit land was taken by the defendant-appellants two years prior to the sale deeds after paying the earnest money and since then the defendants are in exclusive possession of specific killa numbers, therefore, the plaintiff cannot be deemed to be the co-sharer in the suit land at the time of registration of the sale deed and at the time of filing the suits for pre-emption. It has also been pleaded that after purchase of the land, the defendants have spent some amount on the improvement of the suit land and in case the suit is decreed, the defendants are entitled to recover the said amount along with the sale consideration from the plaintiff.
5. On the pleadings of the parties, the following Issues were framed in Civil Suit No.1009 of 1990:
“1. Whether the plaintiff has a superior right to pre-empt the sale in question as alleged?OPP .
2. Whether the sale took place for a consideration of Rs.50,000/- which was fixed in good faith and actually paid? OPD
3. If issue No.2 is not proved, what was the market value of the suit land at the time of sale in question? OPP
4. Whether the suit is not maintainable in the present form as alleged in additional objection No.1 of the written statement? OPD
5. Whether the defendants are entitled to stamp and registration charges, if so, to what amount? OPD
6. Whether the defendants are entitled to improvement charges, if so, to what amount?OPD.
7. Relief.”
6. Similar issues were framed in other two suits. After taking into consideration the evidence led by the parties, the trial court decreed the suits of the plaintiff for possession by way of pre-emption with costs on payment of Rs.56,800/- minus 1/5th pre-emption money already deposited, within two months i.e. up to 14.8.1993 (in Civil Suit No.1009 of 1990), Rs.29,600/- minus 1/5th pre-emption money already deposited, on or before 14.8.1993 (in Civil Suit No.1193 of 1990) and Rs.82,275/- minus 1/5th preemption money already deposited, on or before 9.1.1994 (in Civil Suit No. 1008-C of 1992). It has been held that the plaintiff was a co-sharer in the khewats from wh
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