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2006 Supreme(P&H) 4361
2007(1) R.C.R.(Civil) 552
In the High Court of Punjab and Haryana at Chandigarh.
S. N. Aggarwal, J.
Rajinder Singh and others. - Appellants.
Versus
Pirthi and others - Respondents.
Regular Second Appeal No.1870 of 2005.
Decided On : 17.11.2006.
Mr. Vikram Singh Advocate for the appellants.
Mr. R.S. Tacoria, Advocate for the respondents.
The main legal point established in the judgment is that the purchase of specific khasra numbers does not automatically confer co-sharer rights, and the interpretation of the law of pre-emption must consider the specific details of the land ownership and transactions.
Headnote:
Pre-emption - Land Ownership - 1981-82 Jamabandi - Bhartu Versus Ram Sarup, 1981 PLJ 204 - Shyam Sundar and others Versus Raj Kumar and another, AIR 2001 SC 2472 - Suraj Ram Versus Birbal and others, 2001(2) Punjab Law Reporter 229 - Inder Singh and others versus Om Parkash and others, 1989 P.L.J.754
Fact of the Case:
Nagina sold specific khasra numbers to Pirthi and Harkesh respondents and remaining land to Maan Singh. Pirthi and Harkesh filed a suit for pre-emption as co-sharers. The trial court decreed in their favor, but the lower appellate court accepted the appeal based on amended pre-emption law. The matter was remanded and the lower appellate court upheld the trial court's decision.
Finding of the Court:
The court found that Nagina was the exclusive owner of the land and that Pirthi and Harkesh did not become co-sharers with Nagina after purchasing specific khasra numbers from him. The court held that the judgments passed by the lower courts were based on the wrong interpretation of law and deserved to be set aside.
Issues: The substantial questions of law were whether Nagina was the exclusive owner and whether Pirthi and Harkesh became co-sharers with Nagina after purchasing specific khasra numbers from him.
Ratio Decidendi: The court relied on the 1981-82 Jamabandi, the Full Bench judgment in Bhartu Versus Ram Sarup, the judgment of the Hon'ble Supreme Court in Shyam Sundar and others Versus Raj Kumar and another, the judgment in Suraj Ram Versus Birbal and others, and the judgment in Inder Singh and others versus Om Parkash and others to establish that Pirthi and Harkesh did not become co-sharers with Nagina based on the specific khasra numbers they purchased.
Final Decision: The appeal was accepted, and the suit filed by Pirthi and Harkesh for pre-emption was dismissed.
- Nagina was the owner of land in Khewat No.64, Khatauni No.203, specific Killa numbers as per 1981-82 Jamabandi. (!)
- Nagina sold specific Killa numbers (341//8, 99, 10/1, 13/2) to Pirthi and Harkesh via sale deed dated 7.7.1988, mutation No.815 sanctioned on 5.9.1988. (!)
- Nagina subsequently sold Killa No.31//7(8-0) to Maan Singh (predecessor of appellants) via sale deed dated 25.4.1989, including 1/4th share in tubewell and motor. (!)
- Pirthi and Harkesh filed suit for pre-emption as co-sharers against Maan Singh. [23000438370001]
- Trial court framed issues and decreed in favor of Pirthi and Harkesh based on evidence including Jamabandi Ex.P-1 and mutation. [23000438370002][23000438370003][23000438370004][23000438370005]
- Maan Singh appealed; lower appellate court initially accepted appeal due to repealed pre-emption law, but High Court remanded, and lower court then upheld trial court. [23000438370006]
- Appellants argued Nagina was exclusive owner; sale of specific khasra to Pirthi/Harkesh made them exclusive owners, no co-sharer status for pre-emption. (!) [23000438370007]
- Respondents argued co-sharer status due to same khewat/rectangle numbers. [23000438370008]
- Substantial questions: Was Nagina exclusive owner? Did Pirthi/Harkesh become co-sharers via specific khasra purchase in same khewat/killa? [23000438370009] (!) (!)
- Nagina confirmed as exclusive owner per 1981-82 and 1986-87 Jamabandis. [23000438370010]
- Purchase of specific khasra from exclusive owner confers exclusive ownership, not co-sharer rights or partition right. [23000438370011][23000438370015]
- Same khewat/rectangle does not make purchasers co-sharers with remaining exclusive owner. [23000438370015]
- No pre-emption right as purchasers not co-sharers/joint owners with vendor at time of subsequent sale. [23000438370016]
- Lower courts' judgments set aside based on wrong law interpretation; appeal accepted, pre-emption suit dismissed. (!)
S. N. Aggarwal, J. - Nagina, respondent No.3 was the owner of land comprised in Khewat No.64, Khatauni No.203, Killa No.31//7(8-0), 8(8-0), 9(8-0), 10/1 (1-16), 13/2 (6-8), as per Jamabandi for the year 1981-82. Out of this land, Nagina sold Killa No.341//8 (8-0), 99(8-0), 10/1(1-10) and 13/2 (6-8) to Pirthi and Harkesh respondents vide sale deed dated 7.7.1988 for which mutation No.815 was sanctioned on 5.9.1988. Subsequently, Nagina respondent sold Killa No.31//7 (8-0) of Khewat No.64, Khatauni No.203 in favour of Maan Singh (now deceased) (predecessor-in-interest of the appellants) vide sale deed 25.4.1989 for a sum of Rs.70,000/-. 1/4th share in tubewell, electric motor etc. was also sold along with it.
2. On this, Pirthi and Harkesh respondents filed a suit for possession by way of pre-emption as co-sharers. Maan Singh (predecessor-in-interest of the appellants) had filed written statement and contested the suit. Additional objections were also pleaded.
3. Issues were framed by the learned trial Court.
4. In support of their case, Pirthi appeared as PW-1. He also proved copy of the Jamabandi for the year 1981-82, Exhibit P-1, copy of mutation No.815 mark B and closed the evidence.
5. On the other hand, the appellants examined Mahavir Gupta,Deed Writer as DW-1, Maan Singh defendant himself appeared as DW-2. Desh Raj attesting witness of the sale deed appeared as DW 3. The sale deed was also proved. A copy of the Jamabandi and copies of Khasra Girdawaries were also proved.
6. On the basis of this evidence, and the Full Bench judgment of this Court reported as Bhartu Versus Ram Sarup, 1981 PLJ 204 the learned trial Court held that Pirthi and Harkesh respondents had become co-sharers with Nagina. Accordingly, the suit of respondent Nos.1 and 2 was decreed by the learned trial Court vide judgment and decree dated 25.2.1991.
7. Maan Singh filed an appeal. In the meantime, the law of pre-emption was repealed and the learned Lower Appellate Court accepted the appeal vide judgment dated 25.8.1995 on the basis of amended law of pre-emption. Pirthi and Harkesh filed Regular Second Appeal No.2426 of 1995 in this Court which was accepted vide order dated 7.12.2004,relying upon the judgment of the Hon'ble Supreme Court reported as Shyam Sundar and others Versus Raj Kumar and another, AIR 2001 SC 2472. The matter was remanded by this Court to the learned Lower Appellate Court with the direction to decide the appeal on merits. The learned Lower Appellate Court up-held the judgment of the learned trial Court and dismissed the appeal vide judgment and decree dated 31.3.2005.
Hence, the present appeal.
8. The submission of learned counsel for appellants was that Nagina was the exclusive owner of the land. He had sold specific khasra numbers to Pirthi and Harkesh respondents and by the said sale deed, Pirthi and Harkesh had become exclusive owners of those khasra numbers which were sold to them by Nagina. Nagina had remained the exclusive owner of the remaining land which was subsequently sold by him to Mann Singh vide sale deed dated 25.4.1989. Since respondent Nos.1 and 2 were not co-sharers with Nagina, therefore, these respondents have no right of pre-emption. It was also submitted that the judgment of Hon'ble Full Bench in Bhartu's case relied upon by the learned counsel for the respondent Nos.1 and 2 does not apply to the facts of the present case.
9. On the other hand, the submission of learned counsel for respondent Nos.1 and 2 was that since they had purchased the land from Nagina out of same khewat number and out of same Rectangle number, therefore, they had become co-sharers with Nagina and the case is squarely covered by the judgment in Bhartu's case (supra).
10. After considering the submissions advanced before me, the following substantial questions of law arise:-
1. Whether Nagina was the exclusive owner?
2.Whether Pirthi and Harkesh became co-sharers with Nagina after purchasing specific khasra numbers from Nagina beca
