Pre-emption rights cannot be asserted when the property in question is deemed non-pre-emptible due to reclamation, as established in the Punjab Pre-emption Act.

JUDGMENT :

Deepak Gupta, J.

Plaintiffs - Karan Singh and others (appellants herein) of the case are before this Court in the present Regular Second Appeal against reversal, in as much as suit for possession by way of pre-emption of the land in dispute filed by them was decreed by the trial Court of learned Sub Judge 1st Class, Panipat vide judgment dated 15.02.1989. However, the appeal filed by the defendants (respondents herein) was accepted by the First Appellate Court of learned Additional District Judge, Karnal, who vide his judgment dated 10.09.1990 set aside the judgment & decree passed by the trial Court, thus dismissing the suit of the plaintiffs.

2. Trial Court record was called. Same has been perused. In order to avoid confusion, parties shall be referred as per their status before the trial Court.

3. Ishwar Singh & Ranbir Singh sons of Banwari Lal sold 7/16th share of the agricultural land measuring 106 kanals 08 marlas out of joint Khewat of 243 kanals 04 marlas of the land situated in the area of Village Nawada, Tehsil Panipat, detailed and described in the head-note of the plaint, in favour of defendants by way of registered sale deed dated 23.08.1984 (Ex.D2) for sale consideration of Rs. 2,01,000/-. Claiming to be co-sharers in the same Khewat, plaintiffs asserted their right to pre-empt the said sale. According to the plaintiffs, they had earlier purchased 7/16th share of the agricultural land in the same Khewat from another co-sharer, namely, Daya Chand son of Man Singh by virtue of registered sale deeds dated 06.07.1981 & 27.07.1981 (Ex.Pl and Ex.P2) and thus, had become co-sharers in the suit land along with Ishwar Singh & Ranbir Singh sons of Banwari Lal i.e. vendors of the defendants. It was further claimed that no notice of intended sale was given to the plaintiffs by the vendors as per the provisions of Punjab Pre-emption Act, 1913 (for short, 'the Act') and that land was sold to the defendants, who are strangers to the Khewat.

4. Defendants contested the suit on various grounds inter alia pleading that the suit land is 'Gair Mumkin Sailab' at the time of purchase by the defendants and so, it does not come within the definition of pre-emptible land as per the Punjab Pre-emption Act. In the alternative, defendants claimed that they had re-claimed the suit land after purchasing the same and made it cultivable and for this reason also, the suit land is not pre-emptible. Another objection raised by the defendants was that Daya Chand, the vendor of the plaintiffs was not a co-sharer in the suit land and was merely a tenant and as such, plaintiffs might have purchased the tenancy rights and so, they cannot claim to have become co-sharers with Ishwar Singh & Ranbir Singh i.e. vendors of defendants. Defendants submitted further that even their vendors i.e. Ishwar Singh & Ranbir Singh were also not co-sharers, as they too were cultivating the land as tenants. Apart from this, suit land is recorded as shamlat deh in the column of ownership in the revenue record and that the defendants are co-sharers and proprietors in the shamlat deh and have purchased 7/16th share for consideration. Not only this, after purchasing the tenancy rights, the plaintiffs as well as a defendants have partitioned their share of the tenancy land and now, they are in cultivating possession of separate parcels of land and as such, there is no longer any joint cultivation on the suit land. With this stand and controverting other averments of the plaint, defendants prayed for dismissal of the suit.

5. Necessary issues were framed. Evidence produced by the parties was taken on record.

6. The Trial Court held that 78 kanal 06 marlas of the suit land had already been pre-empted in Civil Suit "Jai Narain vs. Surjit Singh" vide judgment and decree dated 07.08.1970 (Ex.P5, Ex.P6), and thus, the impugned sale was pre-emptible. It found