Punjab-Haryana High Court
Hamir Singh vs Naresh Kumar & Ors on 11 January, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:005173
C.R.No.6897 of 2013(O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
C.R.No.6897 of 2013(O&M)
Reserved On: 23.11.2023
Pronounced On: 11.01.2024
Hamir Singh
...Petitioner
Versus
Naresh Kumar and others
...Respondents
CORAM: HON'BLE MR JUSTICE ANIL KSHETARPAL
Present: Mr. Mani Ram Verma, Advocate,
for the petitioner.
Mr. Rajesh Sethi, Advocate
Mr. Arun Biriwal, Advocate
Mr. Paramdeep Singh, Advocate
Ms. Preeti Bansal, Advocate
for respondent no.1 to 6.
Mr. Gurinder Pal Singh, Advocate
for respondent no.7.
ANIL KSHETARPAL, J.
1. This revision petition has been filed to assail the correctness of
the order passed by the Executing Court on 31.03.2011, by which decree
holder's execution petition has been dismissed.
2. In order to comprehend the issue involved in the present case,
the relevant facts, in brief, are required to be noticed.
3. As per unamended Section 15 of the Punjab Pre-emption Act,
1913 (hereinafter referred to as 'the 1913 Act'), the right to preempt the sale
of the agricultural land and village immovable property is originally vested
in the relatives, co-sharers and tenants. Subsequently, the State of Punjab
repealed the 1913 Act, however it continued to operate in the area of State of
Haryana. In Atam Parkash vs. State of Haryana and others, (1986) 2 SCC
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249, a Five Judge Bench of the Supreme Court held that the right of pre-
emption based on consanguinity is a relic of feudal past and therefore, is
declared ultra vires. Taking clue from the observations made by the Supreme
Court, the State of Haryana substituted Section 15 by the Haryana Act 10 of
1985 in order to give the right of pre-emption only to the tenant who holds
the property under tenancy of the vendor or vendors. The matter again went
to the Supreme Court with regard to applicability of the amended Act on the
pending litigation. In Shyam Sunder and others vs. Ram Kumar and
another, (2001) 8 SCC 24, another Five Judge Bench held that Section 15 as
substituted by Haryana Act 10 of 1985 was held to be prospective.
However, the Court noticed that such right is outdated and piratical. The
Supreme Court also held that if the decree has already been passed in favour
of the pre-emptor the amendment shall not be applicable. However, if
Section 15 has been substituted during the pendency of the suit, the amended
Act would be applicable.
4. In this case, Mr. Jeet Singh and others sold 40 kanals 13 marlas
of agricultural land to Mr. Naresh Kumar vide sale deed dated 03.05.1988.
This sale deed was sought to be pre-empted by filing two different suits, one
by Mr. Bant Singh and Mr. Baldev Singh, whereas the second by Mr. Hamir
Singh which were decreed by the trial Court vide judgment dated
08.10.1995. It was held that the petitioner shall pre-empt 7 kanals 18 marlas
land, whereas his rival pre-emptor Mr. Bant Singh and Mr. Baldev Singh
would pre-empt land measuirng 5 kanals and 3 marlas. Two appeals were
filed by the vendee which were accepted by the learned District Judge, Hisar
vide judgment dated 23.01.1996, on the ground that Section 15 as
substituted by Act 10 of 1985, does not grant right of pre-emption to the co-
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sharers. The correctness of the judgment passed by the first appellate court
was challenged by Mr. Bant Singh and Mr. Baldev Singh in RSA No.854 of
1996. The aforesaid appeal was allowed in view of the judgment passed by
the Five Judge bench of the Supreme Court in Shyam Sunder's case
(supra). The matter was remanded back to the first appellate court to decide
the appeal on merits. The first appellate court dismissed both the appeals
vide judgment and decree dated 27.05.2006.
5. The petitioner filed an execution petition on 02.09.2006.
During the pendency of the execution petition, it was realized that the
petitioner had, in fact, withdrawn 1/5th of the pre-emption money after the
vendee's appeals were allowed by the first appellate court on 23.01.1996.
The application filed by the petitioner to deposit the entire amount including
1/5th of the pre-emption money has been dismissed by the Executing Court.
The petitioner filed an appeal which was subsequently withdrawn upon
realizing that such appeal is not maintainable. Thereafter, this revision
petition was filed along with an application for condonation of delay which
was allowed.
6. This Bench has heard the learned counsel representing the
parties at length and with their able assistance perused the paper book.
7. The learned counsel representing the petitioner while relying
upon the following observations made by the first appellate court contends
that the petitioner had withdrawn the amount as directed by the Court, the
relevant portion is extracted as under:-
"The amount, if any, deposited on account of 1/5th pre-
emption money or the balance be refunded to the
plaintiffs concerned. Decree sheet be prepared and the
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file be consigned to records. The file of the learned Trial
court be sent back with a copy of the judgment."
8. He submits that the petitioner had not withdrawn the amount on
his own and he withdrew the amount without prejudicing his pre-emptory
rights. He submits that the decree passed in favour of the petitioner is
required to be implemented and the trial court has erred in refusing the
permission to deposit the amount. While relying upon a Division Bench
judgment in Sanwal Dass vs. Jagomal and others, AIR 1924, Lahore 68, he
contends that Section 22 (5) (a) of the 1913 Act shall not be applicable if the
amount was withdrawn after the decree. He further contends that the
Executing Court is not expected to go behind the decree and therefore, the
Court should permit the petitioner to deposit the amount.
9. On the other hand, the learned counsel representing the
respondent contends that once 1/5th of the pre-emption money deposited
under Section 22(1) has been withdrawn, there is no provision to re-deposit
the same. He submits that under Section 22(5)(a) of the 1913 Act, the suit or
appeal is required to be dismissed the moment the amount is withdrawn.
10. This court has considered the submissions and analyzed the
arguments of the learned counsel representing the parties.
11. For the decision of the present case, the pivotal issue that arises
before this court relates to the interpretation of Section 22 of the 1913 Act,
which is extracted as under:-
22. Plaintiff may be called on to make deposit or to file
security. - (1) In every suit for pre-emption the Court
shall at, or at any time before, the settlement of issues,
require the plaintiff to deposit in Court such sum as does
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not, in the option of the Court, exceed one-fifth of the
probable value of the land or property, or require the
plaintiff to give security to the satisfaction of the Court
for the payment, if required, of a sum not exceeding such
probable value within such time as the Court may fix in
such order.
(2) In any appeal the Appellate Court may at any time
exercise the powers conferred on a Court under sub-
section (1).
(3) Every sum deposited or secured under sub-sections
(1) and (2), shall be available for the discharge of costs.
(4) If the plaintiff fails within the time fixed by the Court
or within such further time as the Court may allow to
make the deposit or furnish the security mentioned in
sub-sections (1) or (2), his plaint shall be rejected or his
appeal dismissed, as the case may be.
(5) (a) If any sum so deposited is withdrawn by the
plaintiff, the suit or appeal shall be dismissed.
(b) If any security so furnished for any cause
becomes void or insufficient, the Court shall order
the plaintiff to furnish fresh security or to increase
the security, as the case may be, within a time to be
fixed by the Court and if the plaintiff fails to
comply with such order, the suit or appeal shall be
dismissed.
(6) The estimate of the probable value made for the
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purpose of sub-section (1) shall not affect any decision
subsequently come to as to what is the market value of
the land or property."
12. On careful reading of Section 22, it is evident that the court has
a discretion to call upon the plaintiff to deposit or to file security to the
extent of 1/5th of the probable value of the land or property. Sub-section (4)
of Section 22 provides that if the plaintiff fails within the time limit fixed by
the Court or within such further time as the Court may allow to make the
deposit, his plaint shall stand rejected or his appeal shall stand dismissed.
Clause (a) of Sub-section (5) provides that if any sum so deposited is
withdrawn by the plaintiff, the suit or appeal shall be dismissed.
13. In Sanwal Dass's case (supra), the Court held that Section
22(5)(a) of the 1913 Act is not applicable if the entire sale consideration or
the pre-emption money is withdrawn after the decree has been passed. The
aforesaid judgment is not with respect to 1/5th of the probable value of the
land or property. Once, there is a direction by the Court to deposit 1/5th of
the probable value of the land or property, the aforesaid amount is required
to be deposited within the time prescribed failing which the plaint or the
appeal is liable to be rejected. Hence, the Division Bench judgment is not
applicable to the facts of the present case.
14. The second argument of the learned counsel representing the
petitioner is also without substance because the first appellate court while
deciding the two appeals on 23.01.1996, had observed that the amount
deposited on account of 1/5th of the pre-emption money be refunded. It is
the petitioner, who applied for refund. Once he had decided to file appeal to
challenge the correctness of the judgment dated 23.01.1996, no one forced
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him to withdraw the amount. Furthermore, in the alternative the petitioner
was required to atleast apply for re-deposit of the amount once the High
Court vide order dated 09.12.2003, remanded the case back to the first
appellate court for deciding it afresh on merits. In these circumstances, this
court is called upon to decide the inter-se dispute between the parties. As
already noticed, the Supreme Court in Atam Parkash's case(supra) has
recognized that such right is outmoded piratical and a relic of feudal past.
In Kundan Singh and others vs. Mukanda and others, 1970, Punjab Law
Journal, 585, this Court has held that once the plaintiff on his own volition
withdrew the 1/5th of the pre-emption money, the suit or the appeal is liable
to be dismissed. Similarly, in Avtar Singh vs. Ramesh Kumar and another,
AIR 1983 P&H, 259, while interpreting Clause (a) of sub-section 5 the
Court held that once a Zar-e-panjam i.e. 1/5th of the pre-emption money is
withdrawn, the court is not empowered under Section 22 or any other
provision to order re-deposit of the aforesaid amount.
15. It may be noted here that by now approximately 35 years have
elapsed from the date of execution of the sale deed. Hence, the Court does
not find it appropriate to permit the petitioner to re-deposit the amount
particularly when there is neither any provision for re-deposit of the same
nor the petitioner took any steps in furtherance re-deposit the same when
Regular Second Appeal was allowed by the High Court on 09.12.2003. It
may be noted here that the submission of the learned counsel representing
the petitioner that the Executing Court cannot go behind the decree lacks
substance. It may be noted here that in a pre-emption case a conditional
decree is passed in accordance with Order XX Rule 14 CPC, and once the
same has not been complied with, the decree cannot be executed.
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16. Hence, finding no merits, the revision petition is dismissed.
17. All the pending miscellaneous applications, if any, are also
disposed of.
(ANIL KSHETARPAL)
th
11 January, 2024 JUDGE
nt
Whether speaking/reasoned :YES/NO
Whether reportable :YES/NO
Neutral Citation No:=2024:PHHC:005173
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