Punjab-Haryana High Court
Raj Kishan And Others vs Rajbir And Others on 8 April, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:047823
RSA-1245-1994 (O&M) 1 2024:PHHC:047823
109 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA-1245-1994 (O&M)
Date of decision: 08.04.2024
Raj Kishan and others
....Appellants
Versus
Rajbir and others
..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present:- Mr.Namit Khurana Advocate for the appellants
Mr. Pankaj Sh.Bali, Advocate for respondent no.2 and 3
ANIL KSHETARPAL, J (Oral)
1. This is the plaintiffs' 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 issues involved in the present
case, some relevant facts, in brief, are required to be noticed.
3. As per Jamabandi for the year 1985-86, Rajbir son of
Sh.Sadhu Ram was a co-sharer in the land comprised in khewat no.292.
He sold vide sale deed dated 31.11.1989 the land measuring 7 kanals and
7 marlas (one of the land comprised in Rectangle No.34 Khasra no.24)
in favour of Sh.Bal Kishan, Sh.Raj Singh, sons of Sh.Jai Bhagwan.
Sh.Raj Kishan and Sh.Ram Dutt sons of Prem Parkash, Sh.Sandeep
Kumar son of Sh.Subhash and Sh.Kuldip son of Sh.Jai Kishan filed a
suit for possession by way of pre-emption on the ground that they are
co-sharers and the land has been sold out of the joint land without
issuance of notice to them. The vendor namely Rajbir did not contest the
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suit whereas the vendees (defendant no.2to 4) contested the suit claiming
that the suit is time barred and is bad for partial pre-emption. It was also
contended that the plaintiffs are not the co-sharers in the joint khewat.
4. The trial court decreed the suit, however, the First Appellate
Court reversed the judgment and decree passed by the trial court while
relying upon the judgment passed by three Judges Bench in Lachhman
Singh vs. Pritam Chand 1970 PLR 341.
5. Heard the learned counsel representing the parties at length
and with their able assistance perused the paperbook, alongwith the
requisitioned record.
6. Learned counsel representing the appellants, while relying
upon the Five Judge Bench judgment in Ram Chander vs. Bhim Singh
and others 2008 (3) RCR (Civil) 685 submits that the opinion formed
in Lachhman's case (supra) has already been overruled. He submits
that the plaintiffs are proved to be co-sharers. Hence, the judgment
passed by the First Appellate Court is liable to be reversed.
7. Per contra, the learned counsel representing the respondents
(vendees) contends that it will be inequitable to decree a suit for pre-
emption after the passage of 35 years.
8. This Court has considered the submissions made by the
learned counsel representing the parties.
9. Perusal of the Jamabandi for the year 1985-86 (Ex.P-7)
shows that khewat no.292 min/288 is a joint khewat consisting of two
co-sharers Sh.Wadhwa son of Sh.Ramji Lal and Sh.Rajbir son of
Sh.Sadhu Ram. The plaintiff purchased 3 kanals and 8½ marlas land
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vide sale deed 11.05.1988 from Smt. Rehti Devi, Smt.Raj Kali daughters
of Sh.Wadhwa and Sh.Nathi Ram son of Wadhwa. Ex.P-2 is the sale
deed dated 11.05.1988. Rajbir son of Sh.Sadhu Ram sold 3 kanals 8 1/2
marlas land out of the land comprised in khewat no.292 min in favour of
the plaintiffs. Thus, the plaintiffs became co-owner in the joint khewat.
Subsequently, the same Rajbir sold land measuring 7 kanals and 7
marlas vide sale deed dated 03.11.1989. It is evident from perusal of the
Jamabandi that the total land comprised in the joint khewat no.292
min/288 is 41 kanals and 13 marlas. The entire land consists of two
rectangles namely 34 and 45. The concept of joint land is with relation
to khewat and not rectangle. In fact, in one khewat there can be the land
comprised in different Rectangles. This is what has been explained in
the judgment of the Five Judge Bench in Ram Chander's case (supra).
Thus the view of the First Appellate Court is erroneous.
10. With respect to the argument of the learned counsel
representing the respondents, it may be mentioned here that though the
Five Judges Bench in Shyam Sunder and others vs. Ram Kumar and
another (2001) 8 SCC 24 has noted that the right of pre-emption is an
outmoded and inequitable right, however, it has been directed that the
old cases are required to be decided as per the existing land and the
amendment by the Legislature will operate with retrospective effect. In
these circumstances, the plaintiff has a legal right. They filed the suit on
12.10.1990, which was decreed on 28.10.1993. Hence, the plaintiffs are
not guilty of delay. Consequently, the appeal is allowed. The judgment
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passed by the First Appellate Court is set aside and that of the trial court
is restored.
11. Keeping in view the aforesaid facts, no ground to interfere
is made out.
12. Hence, dismissed.
13. All the pending miscellaneous applications, if any, are also
disposed of.
08.04.2024 (ANIL KSHETARPAL)
rekha JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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