IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA-218-1992 (O&M)

Date of pronouncement: 27.02.2025 Ajit Singh ...Appellant(s)

Vs.

Waryam Singh ...Respondent(s)

CORAM: HON’BLE MS. JUSTICE NIDHI GUPTA Present:- Mr. Rakesh Gupta, Advocate for the appellant.

Mr. Malkeet Singh, Advocate with Mr. Mohit Potalia, Advocate for respondent No.1.

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NIDHI GUPTA, J.

The defendant No.1 is in Second Appeal before this Court against the judgment and decree dated 09.01.1992 passed by the learned Additional District Judge, Ambala whereby the judgment and decree dated 31.01.1991 passed by the learned Sub-Judge, III Class, Ambala City dismissing the suit of the plaintiff, has been reversed and appeal of the respondent/plaintiff has been decreed.

2. The parties shall hereinafter be referred to as per their status before the learned trial Court i.e. the appellant shall be referred to as the ‘defendant no.1’; and the respondent shall be referred to as ‘the plaintiff’. Vide order dated 30.01.1992 execution of the judgment and decree dated 09.01.1992 was stayed by this Court till further orders. It has further been stated by learned counsel for the defendant No.1 that the defendant no.1 is presently in possession of the suit property.

3. Brief facts of the case are that the plaintiff being co- sharer, filed the suit for recovery of possession by way of pre-emption of agricultural suit land as described in the plaint, comprising in khewat nos. 250, 291, 251, 293, and 307. The plaintiff alleged that he was co sharer in the suit land at the time of execution of the registered sale deed no.7807 dated 17.2.1988 by the defendant no.2 in the favour of the defendant no.1. He was always ready to purchase the suit land from defendant no.2 but the defendant no.2 had not acceded to his request and sold the suit land to the defendant no.1 in view to defeat the pre-emptory right of the plaintiff through above said registered sale deed dated 17.2.1988 No.7807 and the plaintiff has accrued his right to pre-empt the sale deed.

4. Upon notice, the defendant No.1/appellant herein appeared and filed written statement, resisting the suit by denying that plaintiff was co-sharer in the suit land; and stating that the suit is bad for partial preemption.

5. On the basis of pleadings of the parties, following issues were framed:-

“1. Whether the plaintiff has got a superior and preferential right to pre emption sale in question?OPP

2. Whether the suit is not maintainable in present form?OPD

3. Whether the suit is bad for partial pre-emption?OPD

4. Whether the plaintiff has not deposited one fifth pre-

emption money in time?If so, to what effect?OPD

5. Whether the suit is barred by time?OPD

6. Whether the plaintiff is estopped to file the present suit by his own act and conduct?OPD

7. Whether the plaintiff has reclaimed the suit land after its purchase, if so at what expense and to what effect?OPD

8. Whether the defendant has incurred the expenses on purchases on non-judicial stamp papers on registration charges and on scribe etc. If so to what effect?OPD

9. Relief.”

6. On the basis of arguments and oral and documentary evidence brought on record by the parties, the learned trial Court decided the Issue no.1 against the plaintiff and in favour of the defendant holding that as per Ex.P-1/ Jamabandi for the year 1983–84, the plaintiff is shown as co-sharer in the suit property at the time of execution of sale deed; and that as per the revenue record the plaintiff, not being the original co- sharer in the suit land, has also stepped into the same capacity as the defendant no.1. Issue no.2 was decided against the defendant being not pressed. Issue no.3 was decided against the plaintiff and in favour of the defendant holding that the suit is bad for partial pre-emption as plaintiff had admittedly excluded Khasra no. 38/24/19(0-2), 1981(1-1) from the Suit land without any explanation. Issue nos. 4, 5, and 6 but decided in favour of the plaintiff and against the defendant; and Issue nos.7 and 8 wen