Punjab-Haryana High Court
Aman Khan vs Narender Kumar on 19 April, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:052523
RSA No.2138 of 1994 (O&M) -1- 2024:PHHC:052523
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.2138 of 1994 (O&M)
Date of Order:19.04.2024
Aman Khan and others
.Appellants
Versus
Narender Kumar
..Respondent
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Sachin Mittal, Advocate
for the appellants.
ANIL KSHETARPAL, J
1. This is the plaintiffs' regular second appeal against the judgment
passed by the First Appellate Court which in turn has reversed the judgment
passed by the trial court.
2. While filing the suit on 12.06.1990, the plaintiffs prayed for
pre-empting the sale deed dated 19.06.1989, executed in favour of the
defendant by a co-sharer, namely, Sh. Abdul Rahim. The plaintiffs claim
that they being co-sharers/co-owners have a superior right of pre-emption.
As per the settled law, the superior right to pre-empt the sale deed is requried
to be maintained on the date of the sale deed, the date of institution of the
suit and the date of decree passed by the first court. In this case, the trial
court decreed the suit, however, the First Appellate Court reversed the
decree on the ground that the objections against 'Naksha Be' in a partition
proceedings stood finalized much before the date the trial court decreed the
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Neutral Citation No:=2024:PHHC:052523
RSA No.2138 of 1994 (O&M) -2- 2024:PHHC:052523
suit. Thus, the First Appellate Court held that the plaintiffs could no longer
exercise superior right of pre-emption.
3. At one stage, a Division Bench of this Court held that severance
of status between the co-sharers comes into effect from the date notified in
the instrument of partition. However, the aforesaid view has been overruled
by the Supreme Court in Jhabbar Singh (deceased) through Legal Heirs
and others vs. Jagtar Singh s/o Darshan Singh, 2023 AIR (Supreme
Court) 2074. It has been held by the Supreme Court that severance of status
between the co-sharer is complete on the date 'Naksha Be' is finalised after
deciding the objection filed thereto.
4. In this case on 27.07.1992, after hearing objection on the
proposed partition, the Assistant Collector decided the matter. The
appellants filed an appeal before the court of Collector which was remanded
back to the Assistant Collector with direction to the concerned officer to take
a fresh decision after visiting the land in dispute. In compliance therewith,
the Assistant Collector passed the order on 22.08.1992, he visited the
disputed land on 19.08.1992 along with Patwari and respectable. Previously
also he had visited the property on 12.03.1992. Ultimately, on 22.08.1992, a
detailed order was passed accepting the proposal. It was directed that the
instrument of partition shall be prepared by the authorities after waiting for
expiry of the period for filing appeal. The attention of the court has not been
drawn to any order by which the order dated 22.08.1992, was set aside.
5. Keeping in view the aforesaid facts, there is no scope for
interference.
6. Dismissed.
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RSA No.2138 of 1994 (O&M) -3- 2024:PHHC:052523
7. All the pending miscellaneous applications, if any, are also
disposed of.
April 19, 2024 (ANIL KSHETARPAL)
nt JUDGE
Whether speaking/reasoned :YES/NO
Whether reportable :YES/NO
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