Punjab-Haryana High Court
Hakam Singh And Others vs Ghasitu And Others on 1 April, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:043133
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
110 2024:PHHC:043133
RSA-1250-1994
Date of decision: 01.04.2024
HAKAM SINGH AND ANOTHER ..Appellants
Versus
GHASITU AND OTHERS ..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Pritam Singh Saini, Advocate
Ms. Vamika Johar, Advocate
and Mr. Sanjay Saini, Advocate
for the appellants.
Mr. Anurag Gupta, Advocate
for respondents.
ANIL KSHETARPAL, J(Oral)
1. This is defendants regular second appeal against the judgment
and decree passed by the First Appellate Court, which in turn has reversed
the judgment and decree passed by the trial Court.
2. In order to comprehend the issue involved in the present case,
the relevant facts, in brief, are required to be noticed.
3. Defendant No.3 Smt. Biro Devi was owner of 4 kanal and 4
marlas land being 84/404th share of total land measuring 20 kanal and 4
marlas. She vide sale deed dated 20.01.1989 sold the land in favour of
defendant No.1 Sh. Hakam Singh and defendant No.2 Sh. Jagir Singh for a
sale consideration of Rs.7,350/-. The respondents Sh. Ghasitu Ram etc. filed
a suit for possession by way of pre emption claiming that they have superior
right to pre empt the sale deed in question being co-sharers in the particular
khewat. The defendants contested the suit and pleaded that the plaintiffs
have no superior right to pre empt the land. The trial Court upon
appreciation of evidence came to conclusion that in a partition proceedings
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'naksha be' was accepted on 25.09.1991, which resulted in severance of
status of the co-sharers. Thus, the suit filed by the plaintiffs was dismissed.
However, the First Appellate Court reversed the judgment and decree passed
by the trial Court while relying upon the Division bench judgment in Pritam
Singh Vs. Jaskaur Singh, 1992 PLJ 435, wherein it was laid down that the
severance of status of co-sharers would only be on the day notified in the
instrument of partition, which is ultimately prepared by the revenue
authorities.
4. Against the aforesaid judgment passed by the First Appellate
Court, this appeal has been preferred by the vendees, which was admitted for
regular hearing on 20.05.1994, while granting interim order in favour of the
appellants, which has come up for hearing after a period of 30 years. In the
meantime, the interpretation of law with regard to the date on which the
severance of status takes place has again changed. In Jhabbar Singh
(Deceased) through Legal Heirs and others Vs. Jagtar Singh, 2023 AIR
(SC) 2074, the Supreme Court has held that severance of status as co-sharer
between the parties will come to an end on the day 'naksha be' was
confirmed as the instrument of the partition is only an administrative step to
be taken by the authorities. The Supreme Court has also noticed that the
right of pre emption on the basis of the co-sharer is a piratical, out-moded
and inequitable right, which must be defeated by the vendee by all legitimate
means. The judgment in Pritam Singh's case (supra) has also been noticed
by the Supreme Court.
5. The learned counsel representing the respondents has tried to
distinguish the judgment passed in Jhabbar Singh's case (supra) on the
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ground that in the cited judgment, the appeal against the 'naksha be' was
dismissed during the pendency of the suit before the trial Court, whereas, in
the present case, the appeal against the 'naksha be' was dismissed during the
pendency of the first appeal.
6. This Court has considered the submissions of the learned
counsel representing the parties, however, finds no substance. The date of
dismissal of appeal against 'naksha be' is not crucial. What is pivotal is the
date, the severance of status takes place between the co-sharers. As laid
down by the Supreme Court, the severance of status takes place when the
objections are decided and 'naksha be' was approved/confirmed by the
revenue authorities.
7. Keeping in view the aforesaid discussion, the appeal is allowed.
The judgment passed by the First Appellate Court is not sustainable. Hence,
the same is set aside and that of the trial Court is restored.
8. All the pending miscellaneous applications, if any, are also
disposed of.
April 01st, 2024 (ANIL KSHETARPAL)
Ay JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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