Punjab-Haryana High Court
(O&M) Smt. Chawli Devi & Ors vs Inder Paul & Ors on 4 November, 2024
Author: Pankaj Jain
Bench: Pankaj Jain
Neutral Citation No:=2024:PHHC:143211
RSA-941-1991 &
RSA-2383-1996
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
102
Reserved on : 27.08.2024
Pronounced on : 04.11.2024
1. RSA-941-1991
Smt. Chawli Devi (since deceased) through her LRs ...... Appellants
versus
Inder Paul and others ...... Respondents
2. RSA-2383-1996
Inder Pal and others ...... Appellants
versus
Raja Ram and others ...... Respondents
CORAM : HON'BLE MR. JUSTICE PANKAJ JAIN
Present: Mr. Ashwani Chopra, Senior Advocate with
Mr. Brahmjot Singh Nahar, Advocate
for the appellants in RSA-941-1991 and
for the respondents in RSA-2383-1996.
Mr. Ashish Aggarwal, Senior Advocate with
Ms. Aashna Aggarwal, Mr. Vishal Punder,
Mr. Anmol Dhillon and Mr. Karan Singla, Advocates
for the appellants in RSA-2383-1996 and
for the respondents in RSA-941-1991.
*****
PANKAJ JAIN, J.
1. These two appeals are inter-connected. Both arise out of
suits seeking decree of possession by way of pre-emption by co-sharer.
RSA No.941 of 1991 is at the behest of the defendants, who are
aggrieved of the decree of pre-emption passed against them in favour of
the plaintiffs. RSA No.2383 of 1996 is at the behest of the plaintiffs
whereby suit seeking decree of pre-emption stands dismissed.
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2. Both the appeals are being disposed off by common
judgment based upon common set of facts arising out of suits wherein
relief claimed is the same i.e. decree of pre-emption though qua different
sale deeds but between same parties.
3. Plaintiffs are co-sharers and related to vender Kalanwati.
The pedigree table showing their relationship with the vender Kalanwati
reads as under:-
Kesra Ram
Bhagwana Ram---Bahadur Ram --- Lacchu Ram ------ Lekh Ram
(wife Kalanwati, vendor)
Devi Lal Jai Ram Hari Ram
(wife Sarbati, sister of Kalanwati)
Inder Paul Vinod Kr Rajinder Kr Jagdish Kr Jagat Paul
(Pltff No.1) (Pltff No.2) (Pltff No.3) (Pltff No.4) (Pltff No.5)
4. Relationship between Sarbti wife of Devi Lal and
Kalanwati-the vender is further evident from the following pedigree
table:-
Hardyal Singh
Hari Singh (son)
Sheo Kauri (wife)
Reshmi (Daughter) Kalanwati (Daughter) Sarbati (Daughter)
(w/o Lekh Ram)
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5. Hari Singh died in the year 1940. His share also devolved
upon his three sisters through his mother Sheo Kauri. The land in
dispute is estate of Kalanwati co-owner to the extent of 1/3 in the total
land measuring 399 kanal 15 marlas. Kalanwati agreed to sell her share
admeasuring 133 kanal 05 marlas in favour of defendant No.2-Raja Ram
vide agreement to sell dated 12.06.1986. Out of the said land, she
executed sale deed dated 10.07.1986 qua 80 kanal 0 marla land in favour
of defendant No.1 to 4. Parties agreed to extend date of sale qua
residual land. Rest of the land i.e. remaining 53 kanal 5 marlas was
further sold by Kalanwati in favour of defendant No.2 and 4 vide sale
deed dated 02.01.1987. Plaintiffs filed suit i.e. civil suit No.330/1987
on 16.07.1987 seeking decree of possession by way of pre-emption in
re: sale deed dated 10.07.1986. On 10.09.1987 i.e. during the pendency
of the suit, Bhag Chand defendant No.4 by way of decree, exchanged
his land with defendant No.3 and 5. Second suit to preempt the sale
deed dated 02.01.1987 was filed on 21.12.1987.
6. The first suit filed by the plaintiffs was resisted by the
defendants-vendees claiming that prior to filing of the said suit, they
have become co-owners in the entire suit land. The plaintiffs were
required to have superior right to preempt the sale deed on the date of
sale, date of filing of the suit and the date of decree of suit. Plaintiffs
having lost their superior right are at par with vendees.
7. Suit filed by the plaintiffs was put to trial framing following
issues:-
"1. Whether the plaintiffs have right of pre-emption que
the ale in question as alleged in the plaint?OPP.
2. Whether sale consideration of Rs 1,80,000/- was fixed
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in good faith and actually paid to the vendor as alleged in the
plaint?OPD.
3. If issue No.2 is not proved that was the market value of
the suit land at that time?OPP.
4. Whether plaintiffs are estopped from filing the present
suit by his own act and conduct?OPD.
5. Whether defendants/vendors are entitled the stamp and
registration expenses, if so what to amount? OPD.
6. Whether defendants have made improvement in the
suit land and if so that to amount? OPD.
7. Whether the plaintiffs have no locus-standi to file the
present suit? OPD.
8. Whether the suit of plaintiffs not maintainable in the
present form? OPD.
9. Whether the suit is time-barred? OPD.
10. Relief."
8. Trial Court decided issue No.1 in favour of defendants and
against the plaintiffs holding that plaintiffs do not have any right
superior to that of the defendants and are thus, not entitled to preempt
the sale deed. Issue No.2 and 3 were decided as not pressed in favour of
the defendants and against the plaintiffs. Issue No.4 and 5 were decided
in favour of the defendants and against the plaintiffs. Issue No.6 and 9
were decided against defendants. Issue No.7 and 8 were decided in
favour of defendants and against the plaintiffs. In view of the findings
returned on issue No.1, suit filed by the plaintiffs was ordered to be
dismissed.
9. Plaintiffs filed appeal. Lower Appellate Court accepted the
appeal and held that where the vendee gets the land by way of sale and
not inheritance, he cannot be called a co-sharer. Thus, defendants
cannot be held to be co-sharers at the time when the suit in hand was
filed by the plaintiffs. It thus reversed the findings on issue No.1 holding
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the plaintiffs' right to preempt the sale deed.
10. RSA No.941 of 1991 initially came for hearing before this
Court on 14.05.2018. The same was ordered to be dismissed. The order
was assailed by the appellants-vendees before the Supreme Court. In
Special Leave to Appeal No.16492/2018. SLP stands disposed off
observing as under:-
"Learned counsel for the petitioners seeks permission
to withdraw this petition with liberty to file review petition
before the High Court.
Permission sought for is granted.
The special leave petition is dismissed as withdrawn
with liberty as afore-mentioned. If the petitioners fail before
the High Court, liberty is reserved to them to approach this
Court once over again challenging the main order as well as
the order passed in the review petition.
Status quo, as it exists today, shall be maintained for a
period of one month."
11. Review application was filed. Vide order dated 18.12.2019,
the same was allowed.
12. Learned senior counsel for the appellants while assailing
the impugned judgment and decree passed by the Lower Appellate
Court submits that the Lower Appellate Court has totally misdirected
itself in making classification between a person acquiring share in the
property by way of sale deed and the one acquiring by way of
inheritance. Learned senior counsel further submits that there cannot be
any classification amongst the co-shares on the basis of mode
ofacquisition of title. Mr. Chopra has thus contend that the vendees
having become co-sharer in the suit land prior to filing of suit on
16.07.1987, plaintiffs cannot be allowed to plead right superior to theirs
and thus the present suit deserves to be dismissed. In order to hammer-
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forth his contention, he relies upon Jhabbar Singh vs. Jagtar Singh
2023 AIR SC 2074, Chander vs. Madan Gopal 1981 PLJ 310, Duni
Chand vs. Nagina Singh 1987 PLJ 598, Mala Ram vs. Subhash
Chander 1989 PLJ 445, Ram Kishan vs. Smt. Sharbati 1972 RLR 188.
Mr. Chopra further submits that Kalanwati-the vender was not
impleaded as party to the present case and thus in the absence of finding
in regard to service of notice as contemplated under Sections 19 and 20
of the Punjab Preemption Act, 1913, the instant suit deserves to be
dismissed. He relies upon observations made by Supreme Court in the
case of Jhabbar Singh (supra).
13. Per contra, Mr. Aggarwal, Senior counsel appearing for the
respondents/pre-emptors submits that Lower Appellate Court has rightly
decreed the suit filed by the pre-emptors. Even if sale deed dated
02.01.1987 is considered, the same would not aid the cause of the
vendees. By way of sale deed dated 02.01.1987, it is only Raja Ram and
Bhag Chand who became co-sharers before filing of civil suit on
06.07.1987. Despite judgment and decree dated 10.09.1987, whereby
Bhag Cand transferred his entire share to Om Parkash s/o Chawli Devi
and Sharda Rani daughter of Chawli Devi. Chawli Devi still remains
stranger to the land. He assets that it is settled proposition of law, where
a co-sharer is joined by strangers in acquisition of the property, his
status sinks to the level of stranger and he cannot claim superior right to
that of a co-sharer. He places reliance upon ratio of law laid down by
this Court in Ram Krishan vs. Ratti Ram reported as 1986 PLJ 701,
Garib Singh vs. Harnam Singh and others reported as 1971 PLJ 213
and Full Bench of this Court in Garib Singh vs. Harnam Singh reported
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as 1971 PLJ 578.
14. Mr. Aggarwal further submits that in view of provision as
contained under Section 28-A of Pre-emption Act, 1913 while suit
bearing No.607/1987 to preempt sale deed dated 02.01.1987 was
pending, defendants cannot be allowed to take plea of being co-owners
until the suit for pre-emption is finally decided and period for limitation
to enforce such right expires. He places reliance upon Section 28-A of
1913 Act as interpreted by Supreme Court in the case of Prema (Dead)
Thr. LRs. vs. Surat Singh and others reported as 2003(3) SCC 46 and
ratio of law laid down by this Court in Maya Devi vs. Rameshwar
reported as 1992 PLJ 579. He further relies upon law laid down by this
Court in Prema vs. Surat Singh reported as 1993 PLJ 695 to submit
that where a vendee improves his status by his voluntary efforts during
pendency of pre-emption suits or earlier to compete with intending pre-
emptors, he cannot get any benefit as long as his inchoate right of pre-
emption remains defeasible and does not mature into absolute right by
efflux of time of limitation.
15. I have heard counsel for the parties and have carefully gone
through the records of the case
16. The dates pertinent to decide upon the present lis are
tabulated here as above:-
S.No. Date Event
1. 10.07.1986 Sale deed was executed by
Kalanwati in favour of Chawli
Devi, Raja Ram, Om Parkash and
Bhag Chand. (Ex.D-1)
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2. 02.01.1987 Remaining land measuring 53
kanal 5 marlas was sold by
Kalanwati in favour of Raja Ram-
appellant No.2 and Bhag Chand-
appellant No.5 (Ex.D-19)
3. 16.07.1987 Civil Suit No.330 of 1987 was
filed by the plaintiffs to preempt
sale deed dated 10.07.1986 (Ex.D-
1)
4. 10.09.1987 Bhag Chand-appellant No.5
transferred his entire share to Om
Parkash s/o Chawli Devi i.e.
appellant No.3 and Sharda Rani
daughter of Chawli Devi-appellant
No.4.
5. 21.12.1987 Second civil suit bearing No.604 of
1987 was filed by the plaintifffs to
preempt second sale deed dated
02.01.1987 (Ex.D-19)
17. The issues that arise for consideration before this Court is:
(i) Whether sale deed dated 02.01.1987 and judgment
and decree dated 10.09.1987 can raise the status of
the vendees to that of a co-sharer to resist the suit
filed by pre-emptors on 16.07.1987?
(ii) What is the effect of non-impleadment/non-
examination of Kalanwati in the suit?
18. Section 10, 21A and 28A of the Preemption Act, 1913 read
as under:-
"10. Party to alienation cannot claim pre-emption.
In the case of a sale by joint-owners, no party to such
sale shall be permitted to claim a right of pre-
emption.
21A. Any improvement, otherwise than through
inheritance or succession, made, in the status of a
vendee defendant after the institution of a suit for
pre-emption shall not affect the right of the pre-
emptor plaintiff in such suit.
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28A. Postponement of decision of pre-emption
suits in certain cases. - If in any suit for pre-emption
any person bases a claim or plea on a right of pre-
emption derived from the ownership of agricultural
land or other immovable property, and the title to
such land or property is liable to be defeated by the
enforcement of a right of pre-emption with respect to
it, the Court shall not decide the claim or plea until
the period of limitation for the enforcement of such
right of pre-emption has expired and the suits for pre-
emption (if any) instituted with respect to the land or
property during the period have been finally
decided."
Section 28A deals with the situation in which right to title
of pre-emptor is under cloud. It is a provision that mandates for
postponement of right of pre-emptor and not of a vendee who is
defending his right acquired by way of sale deed sought to be pre-
empted. Thus, Section 28A does not help the cause of the
respondents/plaintiffs.
19. Section 21A deals with improvement in the status of vendee
otherwise than through inheritance or succession after the institution of a
suit for pre-emption. In the present case, the improvement in the status
of the vendees is not after the institution of the suit, but prior thereto.
The other issue that needs to be decided is whether Section 21-A comes
in the way of the vendees to resist the suit filed by the pre-emptors. It
has come on record that all the vendees but for Sharda Rani, daughter of
Chawli Devi i.e. appellant No.4 became co-sharer prior to institution of
suit on 16.07.1987. Sharda Rani-appellant No.4 however acquired
status of co-sharer, not by way of sale deed dated 02.01.1987, but by
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way of judgment and decree dated 10.09.1987 which is during the
pendency of the first suit filed on 16.07.1987. Meaning thereby that on
the date of filing of the civil suit No.330 of 1987 i.e. 16.01.1987, Sharda
Rani was stranger to the property in question. Thus, any right acquired
by her but by way of inheritance or succession after filing of the suit,
will not have an effect of improving her status and shall not affect the
suit filed by the pre-emptor. Meaning thereby, under 1913 Act Sharda
Rani remained stranger to the suit property dehors decree dated
10.09.1987 in her favour. A fortiori, amongst the vendees there was one
stranger. The issue of joining of a stranger and the status of co-sharers
is no more res integra and the same has been answered by Full Bench of
this Court in Garib Singh's case (supra) holding as under:-
"19. As will be seen from the decisions referred to above,
prior to the introduction of Section 21-A there was an
unhealthy race going on the part of vendee do defeat the
right of pre-emption by making improvement in his
position by voluntary and volitional efforts up to the date
of getting decree. By introducing this new provision the
scope of the race to improve his status on the part of the
vendee was circumscribed up to the date of institution of
the suit and not thereafter except where the improvement
in the status of the vendee is not a result of his effort or
volition but because of inheritance or succession. This
section was added to counter-act the view taken in ILR
1942 Lahore 155 and ILR 1942 Lahore 190 and 473 that
the vendee was entitled to defeat the pre-emptor's right
by improving his status at any time up to the adjudication
of the suit by the trial Court. This is quite apparent from
the statement of objects and reasons of the amending Act
1 of 1944, wherein it is stated:--
"Section 21-A is being added to the Punjab Pre-
emption Act to restore the status quo in the case of
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pre-emption suits, wherein the vendee seeks to
improve his position by means of a voluntary
acquisition of right of property made after the
institution of the suit."
20. So far as this Court is concerned, this provision,
section 21-A of the Punjab Pre-emption Act came up for
consideration in Tehoo Ram and others v. Dalip Singh
and another, AIR 1953 Punj 128 where Harnam Singh,
J., relying upon an earlier decision of this Court in Tej
Ram v. Puran Chand, ruled that the improvement made
in the status of some of the vendees after the institution
of the suit for pre-emption cannot affect the right of the
pre-emptors in that suit. In that case one of the six
vendees was a stranger, and the question arose whether
the other vendees who had the right of pre-emption equal
to that of the pre-emptor could be permitted to improve
their status by the sale made in their favour by their co-
vendee during the pendency of the suit. In recording the
above opinion, Harnam Singh, J. relied upon Section21-
A of the Punjab Pre-emption Act. A contrary view has,
however, been taken by Harbans Singh J. (my Lord the
Chief Justice as he then was) recently in Hari Singh v.
Damodar and others, 1966 PLR 45, and it was ruled that
a tenant, who was losing his right of resistance to a suit
for pre-emption as provided under Section 17-A of the
Punjab Security of Land Tenures Act simply because of
the existence of a stranger, can be restored to his right if
he gets rid of the stranger before the passing of a final
decree in the pre-emption suit instituted against the
vendees. The decisions of the Lahore High Court in Ali
Mohd.'s case, Hayat Baksh's case Jas Raj Juniwal's
case and Thakur Madho Singh's case, and the Supreme
Court decision in AIR 1958 SC 838 were considered and
in support of the view taken by his Lordship it was said:
"The learned counsel for the respondent then
urged that Section 21-A of the Punjab Pre-emption
Act specifically prohibits any improvement of the
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status of the vendee during the pendency of the
suit. The word 'status' may have a different
meaning in different context, but I feel that in the
context of this case it has the meaning of the
'position occupied by the vendee'. In the present
case, it must refer to his position as a tenant. No
improvement has taken place in the status of the
tenant because he was a tenant to begin with, and
he continued to be a tenant thereafter. He has only
been able to remove the impediment in his way for
claiming the protection given to him as such."
21. In that case the tenant who had originally
purchased the property along with a stranger later, during
the pendency of the suit got rid of the stranger by
purchasing his interest. Unfortunately, neither the
decision of Harnam Singh, J. in Tehoo Ram and others
v. Dalip Singh and others, (supra) nor the Division
Bench judgment in Tej Ram v. Puran chand, was
brought to his Lordship's notice. By the latter judgment
in Tej Ram's case, the Letters Patent Bench had affirmed
the decision of S. R. Das, C. J. in Tej Ram and others v.
Puran.
22. It cannot be disputed that because of the
amendment of the Punjab Pre-emption Act by
introduction of Section 21-A, the authorities in which it
had been ruled that a vendee by voluntary acquisition can
improve his position even after the institution of the suit
are no longer good law. Section 21-A specifically
prohibits such voluntary improvements after the suit, and
as has been noticed earlier, it was enacted to nullify the
effect of those authorities. This proposition has not been
contested before us. All that has been urged on behalf of
the pre-emptor is that the case before us does not come
within the mischief of Section 21-A as by purchasing the
interests of his wife, who had no right to resist the
plaintiff's claim and was a stranger, Gharib Singh had not
in any way improved his status. Thus, the answer to the
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question, which we are considering, would depend upon
the interpretation of the word "improvement" as used in
Section 21-A of the Punjab Pre-emption Act. The
argument, in brief, raised on behalf of the pre-emptor that
Gharib Singh was a co-sharer at the time of the sale and
related to the vendor being his uncle, and though by
purchasing the interest of his wife in the suit-property he
had no doubt acquired the right of ownership to the entire
property, yet he had not in any way improved his status
either as a co-sharer or as a relation of the vendor. In
such circumstances, it is argued, the resale in his favour
by his wife has not resulted in improvement of his status.
In considering what is meant by 'status' my Lord the
Chief Justice in Hari Singh's case has observed that it
means the same thing as 'position'. It is true that by
purchasing his wife's interest Gharib Singh had in no way
improved upon his status as a cosharer or as a relation of
the vendor, but his position vis-a-vis the pre-emptor has
been materially altered to his advantage. In accordance
with the principle which is now well-settled by recent
decisions and catena of authority, a vendee who
associates with himself in the sale of stranger cannot
resist the claim for pre-emption on the basis of his own
qualifications or status. It is settled law that where the
sale is in favour of several persons, it is the status of the
lowest of the vendees that has to be taken into account in
determining whether the pre-emptor has a preferential
right. Had not Gharib Singh obtained the share of his
wife by gift in his favour, surely he could not have
resisted the pre-emptor's claim. Now by purchasing his
wife's share he claims to have got rid of that disability
and sets up his own status as co-sharer and relationship
with the vendor as defence to defeat the pre-emptor's
claim. In my opinion, there can be no doubt that by
getting rid of the stranger he has attempted to improve
his position."
21. Thus, the issue with respect to the vendees having become
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co-sharer prior to the date of the filing of the suit and thus entitled to
resist the right of the pre-emptors is decided in favour of the plaintiff
and against the defendants.
22. Coming on to the issue of non-impleadment/non-
examination of vendor, this Court has already dealt with the issue in
RSA-2458-1991, titled as Mange Ram and another vs. Shiv Charan
and others. Interpreting Sections 19 and 20 of the 1913 Act, this Court
concluded that:-
"19. Mere status of co-sharer is not enough to
mature into a right of pre-emption. As per settled law
in order to succeed in a suit enforcing right of pre-
emption, it is imperative to show that:-
1. The pre-emptor had the right to pre-empt on the
date of sale, on the date of filing of the suit and on
the date of passing of the decree.
2. The pre-emptor who claims the right to pre-empt
the sale on the date of the sale must prove that such
right continued to subsist till the passing of the
decree of the first court. If the claimant loses that
right or a vendee improves his right equal or above
the right of the claimant before the adjudication of
suit, the suit for pre-emption must fail.
3. That no notice of the proposed sale of the land as
provided under Section 19 was served upon pre-
emptor showing the price at which vendor was
willing to sell the property.
4. In case notice under Section 19 of 1913 Act was
served upon him, the pre-emptor within a period as
prescribed under Section 20 of 1913 Act served
notice on the vendor accepting the price expressing
his willingness to pay the same."
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23. In view of above, the vender Kalanwati may not be a
necessary, but only a proper party to the lis. This Court however finds
that non-examination of Kalanwati has a bearing on the suit. Plaintiffs
were required to prove that they had no notice of the sale as provided
under Section 19. Apart from bald pleadings raised in para 4 of the
plaint, that no notice with respect to sale deed was served upon them,
plaintiffs have not led any evidence to come out of the mischief of
Sections 19 and 20 of the Act of 1913. Though Kalanwati was not
required to be impleaded as a necessary party in view of the settled law,
still plaintiffs ought to have examined her to prove that statutory notice
was not served upon them. Lower Court below has totally ignored the
aforesaid fact and has held plaintiffs entitled to preempt the sale deed
without returning any finding on the statutory notice. In view thereof,
this Court finds that without discharging onus to prove that there was no
notice upon the plaintiffs under Section 19 of the Act of 1913, the suit of
the plaintiffs cannot succeed.
24. As a sequel of discussion held hereinabove, the present
appeals are disposed off. Suit filed by the plaintiffs is ordered to be
dismissed.
25. A photocopy of this order be placed on the file of other
connected case.
(PANKAJ JAIN)
JUDGE
04.11.2024
Dinesh
Whether speaking/reasoned : Yes
Whether Reportable : Yes
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