Back
SUPREME COURT OF INDIA
Ajay Rastogi, Bela M. Trivedi, JJ.
Jhabbar Singh (Deceased) Through Legal Heirs & Ors. – Appellants
Versus
Jagtar Singh S/o Darshan Singh – Respondent
Civil Appeal No. 1497 of 2008
With
Balak Ram S/o Shri Santu & Ors. – Appellants
VERSUS
Jagtar Singh S/o Darshan Singh – Respondent
Civil Appeal No. 1498 of 2008
Decided On : 17-04-2023
(A) Land Laws – Right of Pre-emption – Right of pre-emption is a very weak right and could be defeated by all legitimate methods – Pre-emptor must establish that he had right to pre-empt on the date of sale, on the date of filing of suit and on the date of passing of decree by Court of first instance – Pre-emptor or claimant-plaintiff who claims right to pre-empt sale on date of sale, has also to prove that such right continued to subsist till passing of decree of first court – If claimant-plaintiff loses that right or vendee improves his right equal or above right of claimant before adjudication of suit, suit for pre-emption would fail – In present case, merely because instrument of partition was not drawn, it could not be said that partition was not completed or that joint status of parties was not severed – Plaintiff did not possess status of co-sharer on date of decree and his right of pre-emption had not survived till date of passing of decree in suits – Impugned common order passed by High Court quashed and set aside. [Punjab Land Revenue Act, 1887 – Section 121 – Punjab Land Revenue Act, 1887 – Punjab Pre-emption Act, 1913 – Section 4](Paras 15, 17, 30, 32 and 33)
(B) Civil Procedure Code, 1908 – Order I Rules 9 and 10 – Non-joinder/Misjoinder of necessary party in suit – Though, no suit shall be defeated by reasons of misjoinder or non-joinder of parties, care must be taken by court to ensure that all parties, be it plaintiff or defendant, whose presence is necessary for complete and final adjudication on issues involved in suit, are before court – Courts are empowered to strike out or add parties, at any stage of proceedings as per Order I, Rule 10, C.P.C. – When a right to pre-empt sale was claimed by plaintiff as a co-sharer in lands along with owner, his presence as party defendant was desirable along with other defendants, to effectively and finally decide disputes between parties (Para 13)
(C) Civil Procedure Code, 1908 – Order VI Rule 2(1) – Pleadings – Pleading need not contain evidence by which such material facts are to be proved, nonetheless facts necessary to formulate a complete cause of action i.e., material facts must be stated – Omission of a single material fact would lead to incomplete cause of action and in that case, statement of claim would become bad in eye of law. (Para 14)
Facts of the case:
Both the appeals arise out of the common judgment and order dated 17.08.2007 passed by the High Court of Punjab and Haryana at Chandigarh in RSA No.1470/1983 and RSA No. 1557/1983, whereby the High Court, while allowing the said appeals filed by the original plaintiff Jagtar Singh (predecessor of the present respondent) decreed the Civil Suits no. 420/1981 and 421/1981, filed by him, seeking decree for the possession of the suit lands, claiming right of pre-emption against the original defendants Jhabbar Singh and others (the predecessor of the present appellants). The present appellants and respondent have been substituted as the legal heirs of the original defendant Jhabbar Singh and original plaintiff Jagtar Singh respectively.
Findings of Court:
Impugned common order passed by the High Court deserves to be quashed and set aside and is accordingly set aside. Both the appeals stand allowed accordingly.
Result : Appeals allowed.
JUDGMENT :
Bela M. Trivedi, J.
1. Both the appeals arise out of the common judgment and order dated 17.08.2007 passed by the High Court of Punjab and Haryana at Chandigarh in RSA No.1470/1983 and RSA No. 1557/1983, whereby the High Court, while allowing the said appeals filed by the original plaintiff Jagtar Singh (predecessor of the present respondent) decreed the Civil Suits no. 420/1981 and 421/1981, filed by him, seeking decree for the possession of the suit lands, claiming right of pre-emption against the original defendants Jhabbar Singh and others (the predecessor of the present appellants). The present appellants and respondent have been substituted as the legal heirs of the original defendant Jhabbar Singh and original plaintiff Jagtar Singh respectively.
2. The factual matrix giving rise to the present appeals are as under: -
(2.1) The Civil Suit No. 420/1981 was filed by the plaintiff Jagtar Singh against the defendant Jhabbar Singh and others, with regard to the land admeasuring 12 bighas representing 240/819th share of the land admeasuring 40 bighas 19 biswas, as detailed in para 1 of the plaint. The said land was originally owned by one Jit Singh, who had sold the same for consideration of Rs. 46,500/- to the defendant Jhabbar Singh and others vide registered sale deed dated 07.04.1980.
(2.2) The Civil Suit no. 421/1981 was also filed by the plaintiff Jagtar Singh pertaining to the land admeasuring 10 bighas 18 biswas representing 218/819th share of the land admeasuring 40 bighas and 19 biswas as detailed in para 1 of the plaint, originally owned by Jit Singh and his wife Piar Kaur, who had sold the same for a consideration of Rs 42,500/- to the defendant Jhabbar Singh and others vide registered sale deed dated 24.04.1980.
(2.3) On 06.04.1981, the plaintiff Jagtar Singh filed the said two suits seeking possession of the suit lands on the ground that he was having a superior right to pre-empt those sale deeds as the co-sharer in the joint khewat, however no notice of the sale was given to the plaintiff by the said owner Jit Singh. The defendants Jhabbar Singh and others resisted the suits denying the plaintiff’s claim of superior right of pre-emption.
(2.4) During the pendency of the said suits, on 25.05.1982, the defendant Jhabbar Singh filed a Partition case being no. 78/TP before the Assistant Collector, Tehsil Pihowa, in which the plaintiff Jagtar Singh had filed his objections. The Assistant Collector, Tehsil, Kurukshetra passed the following order on 25.05.1982 as under: -
“…..Therefore, the objections placed by Jagtar Singh and others are rejected and the mode of partition which has already been prepared has been confirmed. Naksha Be is already annexed in the file because it has already been prepared. Therefore, the case is to be listed on 31.5.82 for objections as to Naksha Be”.
(2.5) Thereafter on 31.07.1982, the Assistant Collector, Tehsil, Pihowa passed the following order: -
“Today the file has been produced. Counsel of parties are present, Patwari and Kanoongo are also present who as per the earlier order have provided for passage and boundaries of the plots and about which the parties have been explained. There was no passage for these plots earlier. Even then passage has been given from Khasra 802/1 and 806 from Village Kamoda to Village Jyotisar which is connecting these villages. Another passage is at the East side after 4-5 acres and if these plots did not get any other passages then this is the correct place for such passage. As per Naksha Be of partition, the partition is accepted the details of which is as follows:
| Name | Number of Khasras allotted |
| 1.Jhabbar Singh, Balak Ram, Sardar Ram, Afsar Ram, Sher Singh, Santu S/o Shibbu all the six portions are equal | 790/2-792/2-792/1/2-800 2-16 3-14 0-4 4-0 801 783/2 -802/1 – 806/1 4-0 0-6 3-16 3-16 Total: 22 bigha 12 biswa |
| 2. Jagtar |
SupremeToday
(1) Right of pre-emption is a very weak right and could be defeated by all legitimate methods.(2) Pleadings – Omission of a single material fact would lead to incomplete cause of action and in that c....
The right of pre-emption as co-sharer must be maintained until the date of the decree of the Court of first instance, and a rival pre-emptor who has already exercised his right of pre-emption extingu....
The court ruled that co-ownership acquired through sale does not confer superior rights in pre-emption claims, and failure to prove lack of notice under the Punjab Pre-emption Act is detrimental to t....
The right of pre-emption does not survive post-partition; necessary parties must be included for valid adjudication.
The status of co-sharers ceases when an order for division of the property is passed under Section 118 of the Punjab Land Revenue Act. The date of this order is the date of partition.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
