R.S.A. No. 1809 of 2009 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

R.S.A. No. 1809 of 2009 (O&M)

Date of decision: 30.04.2009

Ranjit

....appellant

versus

Lilu Ram

....respondent

CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA

Present: - Mr. Vivek Khatri, Advocate,

for the appellant.

***

VINOD K. SHARMA, J. (ORAL)

This regular second appeal is directed against the judgment

and decree dated 5.2.2009 passed by the learned Courts below, vide

which the suit filed by the plaintiff/respondent for possession by way of

pre-emption, stands decreed.

The plaintiff/respondent brought a suit for possession by way

of pre-emption to pre-empt the sale of land measuring 2 kanals 13

marlas, sold in favour of the defendant/appellant, by claiming superior

right of pre-emption being tenant over the suit property. It was also

pleaded that the sale consideration depicted in the sale deed was not

correctly depicted with a view to defeat the right of pre-emption.

The suit was contested by the defendant/appellant on the plea

that the plaintiff/respondent did not have superior right of pre-emption,

for the reason that he was co-sharer in the property in dispute and,

therefore, could not seek right of pre-emption against other co-sharer.

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The plea was also raised that the plaintiff/respondent was not tenant over

the property in dispute, as he was not recorded as tenant in the revenue

record and, therefore, could not be said to have superior right of pre-

emption.

The learned Courts below decreed the suit by holding, that the

plaintiff/respondent was tenant over the suit property and, therefore, had

a preferential right of pre-emption.

The learned counsel appearing on behalf of the appellant

contends that the appeal raises the following substantial questions of

law: -

"1. Whether a suit for possession by way of pre-emption

against a co-sharer is competent by other co-sharer?

2.

Whether the judgment and decree passed by the

learned Courts below suffers from mis-reading of

oral and documentary evidence in holding the

plaintiff/respondent to be a tenant over the suit

property, thus, perverse?"

In support of the first substantial question of law, the learned

counsel for the appellant contends, that it was not in dispute that the

plaintiff/respondent had purchased a part of the land, resultantly

acquired the status of a co-sharer in the suit property, therefore, the suit

filed by him for seeking possession by way of pre-emption was not

competent. In support of this contention, the learned counsel for the

appellant has placed reliane on the judgment of this Court in Rajinder

Singh and others Vs. Pirthi and others, 2007(1) RCR (Civil) 552,

wherein this Court was pleased to lay down as under: -

"16. In the present case, Nagina was the exclusive

owner. He had sold specific khasra numbers to

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respondent Nos.1 and 2 and conferred rights of

exclusive ownership of those khasra numbers on

respondent Nos.1 and 2. The respondents did not get

any right of partition with Nagina. It may be that

Khewat was the same or Rectangle was the same but it

does not make respondent Nos.1 and 2 to be joint

owners or co-sharers with Nagina who was the

exclusive owner of some land out of which he sold

specific part of the land to the respondents by specific

khasra numbers. If Nagina had sold half share in the

land owned by him to respondents No. 1 and 2 then

these vendees would have become co-sharers and they

would have acquired a right to seek partition with

Nagina. But since Nagina had sold specific khasra

numbers to respondent Nos.1 and 2, he had conferred

full rights of ownership of those khasra numbers. The

khewat and khatauni numbers would have been

changed in the next Jamabandi after the sale to

respondent Nos.1 and 2 and therefore, respondent

Nos.1 and 2 cannot clai