Punjab-Haryana High Court
(O&M)Hukam Chand & Others vs Rishi Pal & Others on 27 February, 2025
Author: Alka Sarin
Bench: Alka Sarin
Neutral Citation No:=2025:PHHC:028203
101
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA-241-1992 (O&M)
Date of Decision : 27.02.2025
Hukam Chand (deceased) through LRs & Anr ... Appellant(s)
Versus
Rishi Pal & Ors ... Respondent(s)
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Abhimanyu Singh, Advocate for the appellants.
Mr. Ashish Gupta, Advocate for the respondents.
ALKA SARIN, J. (Oral)
CM-585-C-2025 & CM-2014-C-2024
1. Learned counsel for the applicant-respondents states that he
does not wish to press the present applications at this stage.
2. CMs are dismissed as not pressed.
RSA-241-1992
3. The present regular second appeal has been preferred by the
plaintiff-appellants challenging the concurrent findings of fact returned by
the Trial Court vide judgment and decree dated 24.07.1989 and the First
Appellate Court vide judgment and decree dated 28.08.1991.
4. Brief facts relevant to the present lis are that the plaintiff-
appellants herein filed the present suit for possession by way of pre-emption
averring therein that Daya Ram who was a co-sharer in Khewat No.2 Rect.
No.75 Khasra Nos.1 and 2, Khewat No.3 Rect. No.68 Khasra Nos.20 (8-0),
Khewat No.189 Rect. No.68 Khasra No.22 (8-0) to the extent of half share
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and Khewat No.320 Rect. No.68 Khasra Nos.19 (8-0), 21 (8-0) to the extent
of half share vide jamabandi for the year 1984-85 situated at village Bakana,
had transferred the same vide a registered sale deed dated 19.08.1986 in
favour of the defendant-respondent for a fictitious sale consideration of
₹2,20,000/-. The plaintiff-appellants pleaded their superior right of
pre-emption in Khewat No.320 and Rect. No.68 to pre-empt the suit land
measuring 8 kanals i.e. half share of Khasra Nos.19 and 21. In the plaint
though it was stated that the plaintiff-appellants are co-sharers, however,
there was no reference to any title document in their favour.
5. The defendant-respondents in their written statement denied
that the plaintiff-appellants were co-sharers and it was further stated that the
property had been purchased and a tubewell had been installed by the
defendant-respondents. It was the specific stand taken that the plaintiff-
appellants were not co-sharers in any part of the land and that infact they had
actively participated in the execution of the sale deed.
6. The Trial Court vide judgment and decree dated 24.07.1989
dismissed the suit. Aggrieved by the same an appeal was preferred by the
plaintiff-appellants which appeal was also dismissed by the First Appellate
Court vide judgment and decree dated 28.08.1991. Hence, the present
regular second appeal.
7. Learned counsel for the plaintiff-appellants would contend that
the land in the present case was not partitioned and that the plaintiff-
appellants had been non-suited only on the ground that the land purchased
was in a different killa number. It is further the contention of the learned
counsel that as long as the Khewat number was the same, they had a superior
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right of pre-emption. In support of his contentions he has relied upon the
judgment of this Court in the case of Ram Chander Vs. Bhim Singh &Ors.
[2008 (3) RCR (Civil) 685].
8. Per contra the learned counsel for the defendant-respondents
relying on the judgment of the Supreme Court in the case of Jhabbar Singh
(deceased) through Legal Heirs & Ors. Vs. Jagtar Singh s/o Darshan
Singh [AIR 2023 SC 2074] has contended that the right of pre-emption is a
weak right and can be defeated by all legitimate methods. It is further the
contention of the learned counsel that in the present case the plaintiff-
appellants had approached the Court for pre-emption of the suit property
purchased by the defendant-respondents, however, in the entire plaint there
was not a single averment as to how the plaintiff-appellants had become
owners of the suit property without any reference of the title document. The
learned counsel for the defendant-respondents has relied upon the jamabandi
for the year 1984-85 (Ex.P2) to contend that the document exhibited by the
plaintiff-appellants to show their ownership does not show them in the
column of ownership. Rather, they are shown in the Column No.6 as
Kashtakars. It is further the contention of the learned counsel that in the
column of ownership, Daya Ram, Deena Nath sons of Jagannath son of
Jawahar Singh have been shown. The learned counsel has further contended
that in the present case even the vendor was not impleaded and relying upon
the judgments of this Court in the cases of Mange Ram & Anr. Vs. Shiv
Charan & Ors. [RSA No.2458 of 1991 decided on 23.08.2024] and Smt.
Chawli Devi (since deceased) through her LRs Vs. Inder Paul & Ors.
[RSA No.941 of 1991 decided on 04.11.2024] has contended that in the
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absence of the vendor having been impleaded and the compliance of Section
19 of the Pre-emption Act, 1913 not having been proved, the suit itself was
not maintainable.
9. I have heard the learned counsel for the parties.
10. In the present case the plaintiff-appellants had approached the
Court for pre-emption of the suit property on the ground that they were
co-sharers. A perusal of the pleadings reveals that in the plaint though the
plaintiff-appellants claimed to be co-sharers, however, there is no reference
to any title deed in the entire plaint. Further still, even the copy of the
jamabandi which is sought to be relied upon does not find mentioned in the
plaint. During the evidence led by the plaintiff-appellants they had tendered
in evidence jamabandi for the year 1984-85 (Ex.P2). A perusal of the said
jamabandi reveals that in Column No.5 which has the heading 'vivransahit
malik ka naam' which means the name of owner alongwith the details, the
names of Daya Ram, Deena Nath sons of Jagannath son of Jawahar Singh
have been mentioned. In Column No.6 which has the heading 'vivransahit
kashtakar ka naam' i.e. person in cultivation, the name of the plaintiff-
appellants has been mentioned. The learned counsel for the plaintiff-
appellants has not been able to show a single document on the record qua
their ownership. It is an admitted fact that no title document was tendered in
evidence on the record nor relied upon in the pleadings by the plaintiff-
appellants. In the absence of any title document and in the absence of any
other cogent evidence to even remotely suggest that the plaintiff-appellants
were also co-owners in possession of the suit property, the suit for pre-
emption itself was not maintainable.
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11. Hon'ble Supreme Court in the case of Jhabbar Singh (supra)
has reiterated that the right of pre-emption is a weak right holding as under :
15. Now, so far as the right of pre-emption is concerned,
it may be noted that it is a very weak right and could be
defeated by all legitimate methods. This Court as back as
in 1958, in case of Bishan Singh & Others v. Khazan
Singh & Another AIR 1958 SC 838, had set-forth the
contours of the right of pre-emption. It was opined
therein by the four-Judge Bench that-
"11.....The right of pre-emption is not a right to the
thing sold but a right to the offer of a thing about to
be sold. This right is called the primary or inherent
right. (2) The preemptor has a secondary right or a
remedial right to follow the thing sold. (3) It is a right
of substitution but not of re-purchase i. e., the pre-
emptor takes the entire bargain and steps into the
shoes of the original vendee. (4) It is a right to
acquire the whole of the property sold and not a share
of the property sold. (5) Preference being the essence
of the right, the plaintiff must have a superior right to
that of the vendee or the person substituted in his
place. (6) The right being a very weak right, it can be
defeated by all legitimate methods, such as the vendee
allowing the claimant of a superior or equal right
being substituted in his place."
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12. In view of the above, no fault can be found with the judgments
and decrees passed by both the Courts. No question of law, much less any
substantial question of law, arises in the present case. The appeal being
devoid of any merit is accordingly dismissed. Pending applications, if any,
also stand disposed off.
27.02.2025 ( ALKA SARIN )
Yogesh Sharma JUDGE
NOTE: Whether speaking/non-speaking: Speaking
Whether reportable: YES/NO
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