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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Anil Kshetarpal, J.
Ram Chander – Appellant
Versus
Hans Raj – Respondent
R.S.A.No. 1526 of 1992
Decided On : 17-05-2024
Pre-emption - Joint Land Ownership - Punjab Land Revenue Act, 1887 - Sections 111, 122 - The court interpreted the provisions regarding partition and pre-emption rights, concluding that the absence of a completed partition and the lack of notice to co-sharers invalidated the defendants' claims.
Fact of the Case:
The plaintiffs sought possession of land through pre-emption, claiming they were co-sharers and that a sale deed was executed without their notice. The defendants argued that the land was mutually partitioned, though not recorded.
Finding of the Court:
The court found that the defendants failed to prove a completed partition before the trial court's judgment, and the subsequent order by the Collector confirmed the lack of severance of co-sharer status.
Issues: Whether the sale deed executed without notice to co-sharers was valid and whether a mutual partition had occurred prior to the trial court's judgment.
Ratio Decidendi: The court held that a sale deed cannot bind non-signatory co-owners and that the defendants' claim of mutual partition was unproven, as they themselves sought partition under the Act.
Result: The appeal was dismissed.
JUDGMENT :
Anil Kshetarpal, J.
In this regular second appeal, the defendants assail the correctness of the judgment passed by the First Appellate Court which in turn has reversed the judgment passed by the trial Court.
2. In order to comprehend the issues involved in the present case, some relevant facts, in brief, are required to be noticed.
3. The respondents (plaintiffs in the suit) filed a suit for possession by way of superior right of pre-emption on the ground that they are the cosharers in the joint land. Sh. Mani Ram s/o Sh. Sheo Lal sold land measuring 08 kanals vide registered sale deed dated 31.01.1989, to Sh. Des Raj, Sh. Hans Raj son of Sh.Baga Ram, Sh. Purkha Ram, Sh. Ram Chander and Budh Ram sons of Surja Ram. It was claimed by the plaintiffs (respondents herein) that the sale deed has been executed without any notice to them. The defendants (appellants herein) while contesting the suit claimed that the suit land has already been partitioned mutually, however, the same was not incorporated in the revenue record, for which, a partition application is still pending.
4. The trial Court dismissed the suit, however, before the First Appellate Court, the respondents (the plaintiffs) produced a certified copy of the order dated 23.03.1992, passed by the Collector, Sirsa while setting aside the order passed by the Assistant Collector suggesting the mode of partition. On the aforesaid basis, the Court came to a conclusion that on 30.08.1991, i.e. the date of the trial Court’s judgment, the partition was not complete and there was no severance of status between the co-sharers. Consequently, the appeal was allowed resulting in filing of this Regular Second Appeal by the defendants.
5. Heard the learned counsel representing the parties at length and with their able assistance perused the paper-book.
6. Learned counsel representing the appellants while referring to agreement ‘Ex.D3’ submits that there was a mutual partition of the land. He further submits that vide Ex.D4/3, the suit land was partitioned and allocated to Sh. Purkha Ram, Sh. Ram Chander and Sh.Budh Ram. Hence, the partition was complete. He further submits that the order passed by the Collector in the year 1992 has been passed subsequent to the judgment passed by the trial Court. Hence, the order passed by the Collector cannot be taken into account while allowing the plaintiff’s appeal.
7. Per contra, the learned counsel representing the respondents submits that the defendants themselves have filed an application for partition of the land under Section 111 of the Punjab Land Revenue Act, 1887, on 13.03.1990. Moreover, no document has been produced by the defendants to prove that ‘Naksha Be’ was ever sanctioned before the judgment passed by the trial Court. He submits that the case of the defendants that the suit land has been mutually partitioned is not proved because it is the defendants who filed the application for partition under Section 111 and not under Section 122 of the Punjab Land Revenue Act, 1887. He further submits that the order passed by the Assistant Collector proposing the mode of partition was set aside by the Collector on 23.03.1992. Hence, there was no severance of status of the cosharers.
8. This Court has considered the submissions made by the learned counsel representing the parties.
9. The ‘Ex. D-3’ is only an agreement to sell executed by Sh.Mani Ram in favour of Sh.Purkha Ram etc. In the aforesaid agreement, it has been recited that there is a mutual partition. However, this document is not signed by the remaining co-sharers. It is for this reason, the defendants filed an application Ex.D-9 on 13.03.1990 with a prayer for partitioning the land.
10. Another document relied upon by the learned counsel representing the appellants is Ex.D-1, which is a copy of the sale deed. This sale deed has been executed by Mani Ram in favour the defendants. Any recital of mutual partition in the sale deed to which the plaintiff is not a party shall not bind the n
A sale deed executed without notice to co-sharers is invalid if no completed partition exists, as established under the Punjab Land Revenue Act.
(1) Right of pre-emption is a very weak right and could be defeated by all legitimate methods.(2) Pleadings – Omission of a single material fact would lead to incomplete cause of action and in that c....
The right of pre-emption does not survive post-partition; necessary parties must be included for valid adjudication.
The courts affirmed that oral partition lacks recognition under the West Bengal Land Reforms Act, maintaining pre-emptors as co-sharers, thus preserving their right of pre-emption.
A claim of partition in Hindu joint family property must be substantiated with credible evidence; conjecture does not suffice.
The status of co-sharers ceases when an order for division of the property is passed under Section 118 of the Punjab Land Revenue Act. The date of this order is the date of partition.
Result: Appeal rejected.
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