Punjab-Haryana High Court
Hukami vs Jagbir Singh on 19 March, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:039312
RSA-2560-1994 2024:PHHC:039312
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
106
RSA-2560-1994
Date of decision: 19.03.2024
HUKAMI ..Appellant
Versus
JAGBIR SINGH ..Respondent
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Sanjiv Gupta, Advocate
for the appellant.
Mr. Sumeet Bairagi, Advocate
for respondent.
ANIL KSHETARPAL, J(Oral)
1. This is plaintiff's 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. The appellant's suit is
based upon the superior right of pre-emption as co-sharer.
2. In Atam Parkash vs. State of Haryana (1986) 2 SCC 249, the
Five Judge Bench of the Supreme Court described the right of pre-emption
based on consanguinity as 'feudal' 'piratical', 'tribal', 'weak', 'easily defeated'
etc., therefore, declared it as ultra vires the Constitution. Subsequently, the
Government of Haryana also recognized and repealed the pre-emption right
in favour of co-sharer by Haryana Act No.10 of 1995. However, old cases
are required to be decided as per un-amended provisions as held by another
5 Judges Bench in Shyam Sunder and others vs. Ram Kumar and another
(2001) 8 SCC 24. As already noted, such right has been characterized as
feudal, archaic, out-moded, piratical, and inequitable. Recently, in Jhabbar
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Singh (deceased) through legal heirs and others Vs. Jagtar Singh son of
Darshan Singh, 2023(1) ARC 812, again the same view has been reiterated
by the Supreme Court.
3. In order to comprehend the issue involved in the present case,
the relevant facts, in brief, are required to be narrated.
4. Sh. Kanwar Singh was owner of 7 kanal and 13 marlas land
being 1/12th share in the total land measuring 91 kanal and 16 marlas
situated in village Balla, Tehsil Assandh, District Karnal. He sold the
aforesaid land in favour of Sh. Jagbir Singh-defendant for a sale
consideration of Rs.30,000/- vide sale deed dated 17.02.1987.
5. The plaintiff Smt. Hukmi (appellant herein) filed a suit for
possession by way of pre-emption. The defendant contested the same on the
ground that the plaintiff has waived his right of pre-emption because he had
knowledge of the sale deed and defendant was in actual cultivating
possession of the suit land prior to the same as tenant as per the entries
incorporated in his name in the register of 'khasra girdawari' for the crops
Rabi-1986 to Kharif-1987. The trial Court decreed the suit, whereas, the
First Appellate Court reversed the same.
6. This appeal was admitted for regular hearing in the year 1994,
which has now come up for hearing after a period of 30 years.
7. This Bench has heard the learned counsel representing the
parties at length and with their able assistance perused the paperbook.
8. The learned counsel representing the appellant contends that
there is no evidence to prove the tenancy in favour of the defendant. He
submits that entry in the register of 'khasra girdawari' does not carry any
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presumption and there is no evidence to prove that the defendant was
inducted as tenant by Sh. Kanwar Singh. He further submits that there is no
evidence of payment of rent and hence, the First Appellate Court has erred in
accepting the appeal.
9. Per contra, the learned counsel representing the respondent
submits that there is overwhelming evidence to prove that the defendant is in
possession of the property as tenant even before the execution of the sale
deed.
10. The tenancy is either result of a bilateral contract between the
parties or it can be creation of statute.
11. In this case, the defendant while filing the written statement has
specifically asserted that he was in possession as tenant before the execution
of the sale deed. He produced a copy of 'khasra girdawari' (Ex.D-1) with
respect to the crops from Kharif-1985 till Rabi/Hari-1990. It is evident that
in crop Sawani-1986, the defendant is recorded to have cultivated the land as
tenant on payment of half share. Apart therefrom, there is oral evidence of
Sh. Jagbir Singh-defendant as well as a neighbour Sh. Krishan who owns
adjoining agricultural land to prove that defendant was in possession of the
property as tenant. Thus, some evidence was produced by the defendant to
prove that he was in possession as a tenant. Thereafter, the onus shifted on
the plaintiff to prove that defendant was not in possession as tenant on the
date of the sale deed, however, he has failed to examine the vendor i.e. Sh.
Kanwar Singh. Basically, the First Appellate Court upon evaluation of
evidence has reached to a conclusion that possession was with the defendant
before the execution of the sale deed as tenant. Such being finding of fact is
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not amenable to interfere in second appeal in absence of material,
misreading or non-reading of evidence.
12. The learned counsel representing the appellant has failed to
draw the attention of the Court to any perversity in the view taken.
13. Hence, no ground to interfere is made out.
14. Dismissed accordingly.
15. All the pending miscellaneous applications, if any, are also
disposed of.
March 19th, 2024 (ANIL KSHETARPAL)
Ay JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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