A tenant must demonstrate continuous entitlement to pre-empt a sale on specific key dates; failure to do so invalidates the claim.

JUDGMENT :

PANKAJ JAIN, J.

1. Present appeal is directed against judgment and decree passed by District Judge, Gurgaon dated 24.03.1994 affirming the judgment and decree passed by Sub Judge IInd Class, Gurgaon (now Gurugram) whereby the suit filed by the plaintiff has been partly decreed.

2. The issue relates to pre-empting the sale deed dated 05.09.1988 with respect to suit land as detailed out in the plaint. The suit land is comprised of two different khatonis i.e. Khatoni No.727 and 728. In khatoni No.727 plaintiff was the exclusive tenant in possession in land bearing Killa No.79/10 admeasuring 2 K 14 M. In the rest of the land plaintiff was co-tenant along with Banwari S/o Kalu, the present appellant. Once the sale deed was executed by the land owner, both the tenants exercised their superior right to pre-empt the sale deed being tenant over the suit property. Banwari instituted plaint on 17.05.1989 Ex. D-1. The suit was decreed on 01.05.1989. The present suit was instituted on 26.05.1989. The same was decided on 17.11.1992. The Courts below have partly decreed the suit filed by the plaintiffs with respect to Killa No.10 (2-14) Rect. No.79 and have also decreed the suit with respect to half share in the remaining land which is subject matter of the sale deed disputing the same proportionately between the two tenants.

3. Mr. Rajinder Goel, Advocate has assailed the findings recorded by the Courts below assailing that a pre-emptor is required to be in possession of right to pre-empt the sale deed on three relevant dates which are :-

1. Date of sale deed;

2. Date of filing of suit; and

3. Date of decree

4. His contention is that the present plaintiff namely Gordhan even though a co-tenant along with the appellant having lost his right to pre-empt the sale deed on a date of passing of the decree i.e. 17.11.1992 owing to the reason that the sale already stood pre-empted in the suit filed by him, the suit ought not have been decreed by the Courts below. He relies upon judgment passed in Ram Chand Vs. Randhir Singh , 1994(3) PLR 605 and Partap Singh & anr. Vs. Kalu Ram, 1969 CurLJ 829 to submit that a tenant on the part of the land involved in the sale has a right to pre-empt qua the entire land sold.

5. Per contra, learned counsel for plaintiff has supported the findings recorded by the Courts below. It has been submitted that the appellant filed suit concealing the facts from the Courts claiming pre-emption over the entire suit land despite the fact that he was not tenant over a parcel of property admeasuring 2 k 14 marlas bearing rect.No.79 killa No.10. He submits that the plaintiff being exclusive tenant in land measuring 2 k 14 m and co-tenant in the remaining land was the only tenant who could have pre-empted the entire sale deed. Banwari having no right, title or interest in part of the property admeasuring 2 k 14 m had no right to pre-empt the sale deed. He further relies upon judgment passed by Co-ordinate Bench in Ajit Singh Vs. Waryam Singh passed in RSA No.218 of 1992 decided on 27.02.2025. Reference is being made to paras No.16 & 17 of the judgment.

6. I have heard learned counsel for the parties and have gone through the records of the case.

7. There is no dispute with respect to the settled legal proposition that a person seeking right to pre-empt the sale deed must exhibit that his right to pre-empt sale deed existed on the date of sale deed, date of institution of the suit and thereafter continued till date of passing of the decree.

8. The question thus is:-

“Whether Gordhan had right to pre-empt the sale deed subsisting on the date of decree of suit filed by him i.e. on 17.11.1992.”

9. By the time the suit filed by Gordhan materialized for final adjudication, the sale deed already stood pre-emp