Punjab-Haryana High Court
Balbir Singh And Others vs Prahlad And Others on 8 November, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:145889
RSA No.232 of 1994 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.232 of 1994 (O&M)
Date of Order:08.11.2024
Balbir Singh and another
.Appellants
Versus
Pehlad and another
..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Devender Nirban, Advocate
for the applicants-appellants
Mr. Mahipal S. Yadav, Advocate
for respondent no.1.
ANIL KSHETARPAL, JUDGE
C.M.No.7515-C-2024
1. For the reasons mentioned in the application, which is
supported by the affidavit, the application is allowed and the delay of 33
days in filing the restoration application is condoned.
2. CM stands disposed of.
C.M.No.7516-C-2024
3. For the reasons mentioned in the application, which is
supported by the affidavit, the application is allowed and the Regular Second
Appeal which was dismissed for non-prosecution is re-admitted for hearing.
4. With the consent of the learned counsel representing the parties,
taken on Board for final disposal.
MAIN
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5. Defendants no.1 and 2, assail the correctness of the concurrent
findings of fact arrived at by the courts below while decreeing the plaintiff's
(respondent no.1 herein) suit for possession by way of preemption.
6. As per the provisions of the Punjab Pre-emption Act, 1913, the
co-sharers were entitled to pre-empt the sale deed which was executed by
one of the co-sharer in favour of stranger who is not already a co-sharer.
Now, after the amendment in the year 1995, the right of co-sharer to pre-
empt the sale deed does not exist.
7. The following substantial question of law requires
adjudication:-
"Whether a sale deed executed by sole/exclusive owner
with respect to a specific parcel of land comprised in
specific khasra numbers results in a vendee becoming co-
sharer with the vendor?"
8. In order to comprehend the issue, the relevant facts, in brief, are
required to be noticed.
9. Sh. Sumer Singh son of Sh. Desh Raj was exclusive/sole owner
of the land comprised in khewat no.8, khatauni no.14, Rect. No.65/khasra
no.23/1(5-0), Rect. No.75, khasra no.2/2 (4-9), khasra no.3(7-8), khasra
no.8(7-19), khasra no.9/2(7-4), total measuring 32 kanals as per jamabandi
for the year 1987-88, in village Palri, Tehsil and District Mohindergarh. He
executed a registered sale deed in favour of Sh. Pehlad (the plaintiff,
respondent herein) on 13.06.1989 with respect to land comprised in Rect.
No.75, khasra no.8(7-19). He again executed another sale deed with respect
to 11 kanals and 13 marlas comprised in Rect. No.75, khasra no.2/2 (4-9)
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and 9/2(7-4) on 21.07.1989, in favour of the appellants( defendants no.1 and
2).
10. Sh. Pehlad (respondent) filed a suit for possession by way of
pre-emption which was decreed by both the courts below.
11. This appeal was admitted for regular hearing in the year 1994
and has now come up for final disposal.
12. This Bench has heard the learned counsel representing the
parties at length and with their able assistance perused the paper book along
with the requisitioned record.
13. On the one hand, the appellants' counsel submits that the sale
deed executed by Sh. Sumer Singh on 13.06.1989, in favour of the
respondent (plaintiff) with respect to the land comprised in Rect. No.75,
khasra no.8(7-19) would not result in creation of joint khewat or in other
words Sh. Pehlad would not become co-sharer with Sh. Sumer Singh. While
relying upon the judgments passed in Inder Singh and others vs. Om
Parkash and ohers, 1990(1) S.L.J, 10 and Surjit Singh vs. Bikhu Ram and
another, 1991 PLJ 346, he submits that the vendee (Sh. Pehlad) would not
become co-sharer with Sh. Sumer Singh in khewat no.8.
14. Per contra, the learned counsel representing respondent no.1
submits that both the courts have concurrently found that the respondent has
the superior right of pre-emption as co-sharer.
DISCUSSION
15. Copy of jamabandi for the year 1987-88 (Ex.D5) proves that
Sh. Sumer Singh son of Sh. Desh Raj, who was the common vendor of sale
deeds executed in favour of the plaintiff and defendants no.1 and 2, was
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Neutral Citation No:=2024:PHHC:145889
exclusive and sole owner of the land comprised in khewat no.8. The
expression 'co-sharer' is in the context of khewat/khata. In Khewat no.8,
there was no other co-sharer. A perusal of the sale deed Ex.D4 (13.06.1989)
in favour of respondent proves that the land measuring 7 kanals and 19
marlas comprised in Rect. No.75, khasra no.8 was sold. It is not recited in
the sale deed that an undivided share in the joint land is being sold. The sale
deed is also with respect to specific khasra number and specific area. Thus,
Sh. Pehlad would not become co-sharer with Sh. Sumer Singh.
16. Despite request of the court, the learned counsel representing
the respondent(s) has failed to draw the attention of the court to any
provision which provides for creation of a joint khewat of vendor and
vendee if the vendor sells the land comprised in specific khasra number to
the vendee.
17. It is evident that the land comprised in Rect No.75, khasra
no.2/2(4-9) and 9/2(7-4) was sold on 21.07.1989, in favour of the appellants
(defendants no.1 and 2). Even after such sale, defendants no.1 and 2 would
not become co-sharer/co-owner with Sh. Sumer Singh as he was the
exclusive owner of the remaining land.
18. It is evident that both the courts have failed to appreciate that
the status of vendee of a specific parcel of land from sole/exclusive owner
would not result in creation of a joint khewat resulting in vendor and vendee
becoming co-sharer.
19. Keeping in view the aforesaid discussion, the question of law is
answered in favour of the appellants. The judgments passed by the courts
below are set aside.
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20. The Regular Second Appeal is allowed.
21. All the pending miscellaneous applications, if any, are also
disposed of.
(ANIL KSHETARPAL)
JUDGE
November 08, 2024
nt
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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