The right of pre-emption does not survive post-partition; necessary parties must be included for valid adjudication.

JUDGMENT :

SUVIR SEHGAL, J.

1. Aggrieved of concurrent findings recorded by the two Courts, appellants/defendants have approached this Court by way of instant second appeal.

2. Facts, in brief, are that the respondent/plaintiff filed a suit for possession by way of pre-emption of sale deed dated 16.05.1988 in favour of the defendant for a sale consideration of Rs.1,93,500/-. Pleaded case of the plaintiff is that vendors, Balwinder Singh etc., sold suit land 83 kanal 11 marlas vide a registered sale deed dated 16.05.1988 in favour of the defendant for sale consideration. Plaintiff, being a co-sharer in the khewats, claims to have a superior right of pre-emption. He averred that at the time of execution of the sale deed, no notice as required under the Punjab Pre-emption Act, 1913 was given to him and the market value of the land has deliberately been shown at Rs.2,70,000/- in order to defeat the right of the plaintiff. Upon notice, suit has been contested by the defendant by submitting that plaintiff took an active part in the bargain of the suit land and was present in the office of the Sub Registrar at the time of the registration of the sale deed. Some other objections were also taken and right of the plaintiff to preempt the sale was denied. Stand was taken that the defendant has made improvements on the land and suit deserves to be dismissed with special cost. Plaintiff filed a replication controverting the stand taken by the defendant. On the basis of the pleadings of the parties, Trial Court framed issues. After the parties led evidence and were heard, Trial Court decreed the suit vide judgment dated 07.04.1992 and directed the plaintiff to deposit the balance sale consideration as well as charges. Defendant remained unsuccessful in the first appeal, which was dismissed by the learned Additional District Judge, Sirsa vide judgment dated 18.09.1992 resulting in the institution of the present appeal.

3. Mr. Sanjiv Gupta, Advocate, counsel for the appellant has argued that that during the pendency of the suit by order dated 26.12.1990, Ex.P5, Assistant Collector had directed the preparation of naksha-be, which amounted to the partition of the suit land. He urges that with the partition, the status of the plaintiff as a co-sharer came to an end and his right to pre-empt did not survive. It is also his argument that the vendors have neither been impleaded as a party nor have they been examined as witnesses and in their absence, suit cannot succeed. While supporting the impugned judgments and decrees, counsel for the respondent has contended that an order directing the preparation of a partition plan does not result in the severance of relationship of a co-sharer. It is his argument that till the time the partition deed is not drawn, plaintiff continues to be a co-sharer and can exercise the right of pre-emption.

4. I have heard counsel for the parties and considered their respective submissions, besides examining the Trial Court record.

5. The legal position is well settled. In Shyam Sunder and others Versus Ram Kumar and another , (2001) 8 SCC 24 , a five judges bench of the Supreme Court has observed that in modern times, right of pre-emption based on statutes is a maligned law. Such a right is feudal, archaic and outmoded, although, it may have its origin based on custom and was subsequently codified. In changed circumstances, the right is outmoded, but as long as it is statutorily recognised, it has to be given the same treatment as any other law deserves. Supreme Court noticed that after coming into force of Haryana Amendment Act No.10 of 1995, right of pre-emptio