Punjab-Haryana High Court
Puran Singh vs Jeet Singh on 20 March, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:040165
RSA-323-1994 2024:PHHC:040165
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
102
RSA-323-1994
Date of decision: 20.03.2024
PURAN SINGH & ORS. ..Appellants
Versus
JEET SINGH ..Respondent
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Raj Kumar Gupta, Advocate
for the appellant.
ANIL KSHETARPAL, J(Oral)
1. The plaintiff has filed this regular second appeal to assail the
correctness of the judgment and decree passed by the First Appellate Court,
which in turn has reversed the judgment and decree passed by the trial
Court.
3. In order to comprehend the issues involved in the present case,
the relevant facts, in brief, are required to be noticed.
4. The land measuring 9 kanal and 8 marlas was sold by Sh.
Harbel Singh, Sh. Maluk Singh, Sh. Tirlok Singh and Sh. Karnail Singh sons
of Sh. Surain Singh in favour of Sh. Jeet Singh son of Sh. Baja Singh for a
sale consideration of Rs.85,000/- vide registered sale deed dated 16.07.1990.
The appellants filed a suit for possession by way of pre-emption claiming
superior right to purchase the land. The civil suit was decreed on 02.11.1992,
however, the First Appellate Court vide an elaborate judgment dated
20.07.1993, held that there is a mistake in the description of the property and
that the plaintiffs have omitted to include Khasra No.5 min of Rectangle
No.55 in the plaint and therefore, the suit is not maintainable. In substance,
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the Court held that partial pre-emption of the sale deed is not maintainable.
The First Appellate Court relied upon the various judgments passed by the
High Court. The plaintiffs regular second appeal was admitted for regular
hearing, which has come up for hearing after a period of 30 years.
5. There have been significant developments in between that
warrant acknowledgment.
6. The Five Judge Bench of the Supreme Court in Atam Parkash
vs. State of Haryana (1986) 2 SCC 249, described that the right of pre-
emption is based on consanguinity and it is 'feudal' 'piratical', 'tribal', 'weak',
'easily defeatable' etc., and resultantly, declared it as ultra vires the
Constitution. Subsequently, the Government of Haryana also recognized and
repealed the pre-emption rights in favour of co-sharers by Haryana Act
No.10 of 1995. However, the old cases are required to be decided as per the
unamended provisions as held by another 5 Judges Bench in Shyam Sunder
and others vs. Ram Kumar and another (2001) 8 SCC 24, however, the pre-
emption right has been characterized as feudal, archaic, out-moded, piratical,
and inequitable. Recently, in Jhabbar Singh (deceased) through legal heirs
and others Vs. Jagtar Singh son of Darshan Singh, 2023(1) ARC 812, the
same view has been reiterated by the Supreme Court again.
7. This Court has considered the submissions of the learned
counsel representing the appellants.
8. Ordinarily, such kind of typographical or clerical mistake can be
overlooked, however, the plaintiffs are seeking a right, which has been
recognized by the Courts as inequitable and easily defeatable right. Two
Five Judge Benches of the Supreme Court have already declared that the
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pre-emptory right is an outmoded right and is not in consonance with the
developments, which have taken place during all this while. This Court also
exercises equitable jurisdiction. It will not be equitable after a passage of 34
years to permit the appellants to exercise superior right of pre-emption on
being a co-sharer in the undivided land particularly when the superior right
to pre-empt the sale deed on the basis of the co-sharer has already been
omitted by Haryana Act No.10 of 1995. As already mentioned, the old cases
are being decided as per the unamended provisions. The right of pre-emption
is a right of substitution of the pre-emptor with that of the vendee.
9. Keeping in view the aforesaid facts and discussion, no ground
to interfere is made out.
10. Dismissed accordingly.
11. All the pending miscellaneous applications, if any, are also
disposed of.
March 20th, 2024 (ANIL KSHETARPAL)
Ay JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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