The right of pre-emption is not valid for partial possession when the claimant is a co-sharer in only part of the land sold.

JUDGMENT :

Suvir Sehgal, J.

Appellant/defendant No.l is in second appeal assailing concurrent finding recorded by the two Courts below.

2. Respondent No.l/plaintiff filed a suit for possession of 16 marlas land by way of pre-emption of sale deed dated 03.06.1986. His pleaded case is that he was co-sharer of unpartitioned land measuring 7 kanals 6 marlas along with Bharat Singh and Vaid Singh. Bharat Singh sold his l/9th share, that is 16 marlas, besides other agricultural land totalling 18 kanals 04 marlas to defendant No.l vide sale deed dated 03.06.1986 for a consideration of Rs.60,000/-. Claiming that he is a co-sharer in Khewat No.89 with Bharat Singh, plaintiff filed a suit for pre-emption of 16 marlas land asserting that inflated consideration of Rs.30,000/-, has been mentioned in the sale deed. Upon being served, suit has been contested by defendant No.l, wherein he denied the status of the plaintiff as a co-sharer. Explaining the sale consideration, defendant No.l averred that half the amount was paid as earnest money and the balance amount was paid at the time of registration of the sale deed. Defendant No.l claimed to be in possession of the suit land and stated that a similar suit had been filed by defendant No. 10 at an earlier stage, but it was dismissed. An objection was taken that the suit is bad for partial pre-emption and that the plaintiff has not deposited the zarepanjam. Defendant No.l stated that he was a tenant in the suit land and had purchased it after paying the agreed consideration of Rs.60,000/-. Defendants No.2 to 10 did not appear and were proceeded against ex parte. Plaintiff filed a replication reasserting the averments of the plaint. On the basis of the pleadings of the parties, Trial Court framed issues. After the parties led evidence and were heard, vide judgment and decree dated 15.11.1990, Trial Court decreed the suit. Defendant No.l remained unsuccessful in the first appeal, which was dismissed by the learned Additional District Judge, Jind, vide judgement dated 31.07.1991, resulted in the institution of the instant second appeal.

3. Counsel for the appellant has argued that a total of 18 kanal 4 marlas of land falling in three different khewat numbers was purchased by the appellant by virtue of sale deed dated 03.06.1986. He submits that respondent No.l/plaintiff is the co-sharer in khewat No. 89 to the extent of 7 kanals 6 marlas. A suit for pre-emption of a part of the land sold to the appellant, is not maintainable. He has placed reliance upon

(i) Ram Chand Versus Randhir Singh & others (1994) 6 SCC 552 ;

(ii) Banta Singh etc, versus Harbhajan Kaur etc. 1974 (2) ILR(Punjab) 178; and

(iii) Ganga Singh versus Narinjan Singh , 1969 Current Law Journal 177.

4. Per contra, counsel for respondent No.l has urged that being a co-sharer, plaintiff has a superior right of pre-emption and he is entitled to get a decree for possession in respect of the part of the property in which he has a joint holding. He asserts that the plaintiff is entitled to claim preemption in respect of a portion of the property sold by virtue of sale deed dated 03.06.1986. Reference has been made by him to:

'(i) Basawa Singh Vs. Santa Singh and another 1966 (2) ILR (Punjab)202;

(ii) Moti Ram Versus Bakhwant Singh 1968 (1) ILR (Punjab) 104;

(iii) Phulla Singh and another Versus Sulakhan Singh 1988 PLJ 15; and

(iv) Umar Khan Versus Nawal Singh 2009 (4) PLR 338. '

5. I have heard counsel for the parties and considered their submission besides examining the Trial Court record.

6. 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 modem times, the right of pre-emption based on statutes