High Court of Punjab and HaryanaRSA/857/1988dismissed

(O&M) Jiya Lal And Others v. Raj Kumar

2021-01-12Mr. Justice Mahabir Singh Sindhu33 pages

!"#

#$%&% '( !')!*+

,- ,.,

( /0

*#&#'"

! " # $%& # ! & # ! "

''''' - (!

" )

)*+,- (

.Fourth/"0 1- 1

*2*3 - # " 4 " 5 6 " 7 7 !"

) "15 Persons in whom right of preemption vest in respect of sales of Agricultural land and village immovable property:

(1) The right of preemption in respect of agricultural land and village immovable property shall vest: (a) """"""""""""""""""

(b) Where the sale is of a share out of joint land or property and is not made by all the cosharers jointly: FIRST""""""""""""""""

SECONDLY""""""""""""".

THIRDLY""""""""""""""..

FOURTHLY, in the other cocharers;

FIFTHLY""""""""""""""..

8 #-

" lis

8 "

5 69& &

- )!

%*+" %:*8 !

*;<:*2=:

) 1"" &

" - ) .

&/ "

& &

-- & >

;* "0 1-( *2*=9" 5 1-( 6 3 #& "

) ) ? & 9 & !

" &

- !

9 & " " 2= <<<@) -

* 8< <<<@) & " " 88 <<<@)

; %* ; "

9 &

& "

- %+ "&

)

) & 9 "

- !

" * 8< <<<@)- ?

9 ! -

" *+ <<<@)

+<3A+ - "

88@) " &

& *< <<<@) " !

" & !

+ B - " "

) 5* Whether plaintiff being cosharer with vendors in the khewat comprising the suit land has got superior right of preemption against defendant set No. 1 over the suit land? OPP. 2.

Whether Rs.1,20,000/ as sale consideration of the suit land was fixed in good faith and actually paid by defendant set No. 1 to vendors? OPP.

Issue No. 2 is not proved, then what was the prevailing market price of the suit land at the time of sale? OPP. 4.

Whether plaintiff has got no locus standi to file the suit? OPD. 5.

Whether plaintiff has got no cause of action to file the suit? OPD.

Whether the suit is under valued for the purposes of court fees? OPD.

Whether in the event of decree of the suit defendants set No. 1 are entitled to recover Rs.15525.75 P. as stamp expenses registration charges and writing charges from plaintiff? OPD. 8.

Whether the plaintiff is estopped by his own act and conduct from filing the suit? OPD.

Whether in the event of decree of the suit defendants set No. 1 are entitled to recover Rs.10000/ allegedly spent for effect in improvements over the suit land? OPD.

10.

Relief." ,

" "

8;<<< - *@+ " -- ! "

" #

88" : , !

)

1C)*

) D7-1*)

*;<:*2=: D7-18) - " *2=*)*2=8 D7-13)%:A8

*3<3*2=: ! D7-1;)

82<=*2=: A B

%;)

& ) C*)11

& "

C8) !

& "

C3)

! C;)#

! C+)

D7 *)#

*;<:*2=: D7 8)

<;<3*2=: = " -

% * ; + : = E 2 "! "

9 &

% 8 E A &

"!"

,! &" "

%3&"

C &

%*<

83***2=A "& ) "It is ordered that the suit of plaintiff succeeds and the same is, hereby, decreed by holding that plaintiff being cosharer in the khewat comprising the suit land is

entitled to preempt the impugned sale of suit land. Plaintiff is directed to deposit Rs.1,11,52575P(calculated after deducting Rs.24,000/ the earlier deposit of 1/5thof the sale price from the total amount of Rs.1,35,52575P being Rs.1,20,000/ as sale consideration, Rs.15,000/ as stamp expenses Rs.50375P as registration fees and Rs.22/ as writing charges) in the Treasury on or before 23.12.1987, failing which the suit of plaintiff shall stand dismissed. However in the event of deposit of such amount by plaintiff within the stipulated period, defendants No.1 to 5 shall deliver the vacant possession of suit land to plaintiff. Parties are left to bear their own costs."

" !

*8<8*2== *<

, !

<:<88<*2

-# F " (9-

- 4/- #

<:*88<*2 (! %2833 " 8<*2 "

B ;* 8A " ( " (! 1

*2<=9" 5(1(6

- (

&& -

! ) "4.

For the nature of order we propose to pass, it is not necessary to dilate on the factual matrix of the case except to observe that the second appeal filed by the appellant(s) came to be dismissed despite the application preferred by the appellant(s) under Order 41 Rule 27 of the Code of Civil Procedure for production of certified copy of order dated

07.06.1986 passed by the Guardian Judge, Jind by way of additional evidence to establish that the respondent(s)/ plaintiff(s) had knowledge of date of sale of property as the sale was after taking permission from the Guardian Judge. 5.

Counsel for the appellant(s) has also invited our attention to the report accessed through the official website of the High Court which indicates that the stated application is still pending in the High Court.

The High Court in the impugned judgment has taken notice of the stated application and the contention urged by the appellant(s) in that regard. However, the High Court has not analyzed the efficacy of the said application or the argument pursued by the appellant(s).

As aforesaid, the impugned judgment has dealt with other issues without recording any observation in reference to the plea taken by the appellant(s) that the said document would go to the root of the matter.

We also place on record the argument of the counsel for the respondent(s) that the said document has no relevance to the matter in issue. However, that plea will have to be considered by the High Court in the first place". ** 1

& ! "

" '"#'"% '&

4#5!6

"5# !77#66!'"& )

)

" ? -

& &

" #

) &

" !-

? - - "!

)

89#* %':5

;#*&)&

5!*!9 %':5 ,..3 ,

%;%6 2

& !

- " 7

" !

! 9 & !"?&

" "!

& #

**;" , D!

*=A8" .D!

/" &

- - 7

" -!

" ,

" C)+

" "!" - "

?""

"" ! &"#

**+" D!

" " "

%%%

" & @ "!" "

& ! F

" (

!"%

!9 !'<

"5#*& ;

!9 5!'< !'<

"5#*& )'8!4

!% %':5 =#*&)& ):56!

!'<

"5#*& 3 0

! !"

" !

& # %: -

=8" 4 $ *2+:" 5 $ 6 9 & &

- $ <A<:*2=: F

- $

- &

- 8*<;*2=: & . ? ( /

& !

- "

" #

*2" 9-

8=<A*2=: - "

! &" ! "#

8<" - "

! "B ;* 8A*-"(1( -

! & " " 7

( &

" " -

& & ?&

" -

8=<A*2=:

- $ -

9 "& 9 &

- ( " ""

" - &

& & # F

%;%6 3 .

)*<%!6 %':5

"5#*& =& !9 5!'<> ,.,

%;%6 3 !9 %?!& =& @!6) !9

"5#*& *8 B

& - ) F - & !

) &

) ? & 9 - ! & "

D71* - D71)8 & D713

&%A<

" ? - @ " & !

"! " - !

&""

- ) #

" C

)

" ? - " " &- " )& @ )

" "

& HF

" (

0 ,.25!*")

=& !9 !*)7- & &

" 4/- #

(

8<<2 *+ #(( A;A)!%

%':5 !'<

"5#*& =&)*9#8 %':5> 8<<2 *: #(( :8+ A5!*

<#!< 4+ 0& =& !9 %':5

" -

5!*")B&

& !

-4/- #

( A5!*B&

" ! G

"" & &

- - - &9 !

? & %A< &

- &

)

- " &

- &" " 9

- -

) - & !

& ! ?&

0 - ""

- -

9 "

" ""

" , "

?& -

8=<A*2=:9

*@+ " 8;<<<@)

88" "

" * ** +8+A+ 1 & 9 - " -

& !

" "

% " !

& !?&

- "

" "" "

C)+

? " "

& !

" "

& ipso facto!

& ! ?&

" " " 9

" &

**;"D!

# "

9 "

& !!

9 "

- " " - " - -

%= &

" "

- " &

9 - "

- ) #

*+*-

- !

& & ( F

"4/- #

(

,- - ,2 "!9 !*A!&5 =& "!"#

!*+!'!

!'<

*&9 ,.. ,25!9 )'<#* !'<

"5#*& =&

!9 @)9!* !'<

"5#*&

! !

" "

& G

& ! & " -

8*<;*2=:

- $ -

<A<:*2=:

& ! !

*2" 9 -

0 & " !

- " " -

- &

! &" ! " #

*2 " & - !

" -

" ! 9

& "$ !9 "

& ,.

%;%6 ,. &5!'

0!6 !'<

"5#*& =& !<5) !'< !'

"5#* C "

& & & -

<A<:*2=:" !

- " " & -

& - ? 83***2=A - "

& "

8=*<8<*3 " " 8: & &

" -

- " " " -

<A<:*2=: - & "

& ! ?&

- "

! & " -

- $ - - &

& G

*2 " G

- "

9 -

9 " $ ! " " !

9" -

- -

1,.1 )'<#*

*<#* 2 )6# ,

B ;* 8A" (1(- !" " G

)

(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

(2) Wherever additional evidence is allowed to be produced, by an Appellate Court, the Court shall record the reason for its admission."

" 8A 7

!I &

9- !

& !-

9 G

" -

" ,

& - ! "

9 !

- "& ! &" , !

- ;"

<A<:*2=: " $ ( !

- -

-&"

- "

" -

- &

H + " -

" -!

" "

- -

& -

- -

9 -

" $ ( " "

<A<:*2=: " "

- &

& B ;* 8A(1( ""

- -

(

" !

- & & & -

<A<:*2=: & -

%:# #- " #

= 8 " $ "

- "

" &

"-!

*; #

= 8 " $ - !

) ! """""..

(2) The natural guardian shall not, without the previous permission of the court, (a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor; or (b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority.6 " -)

8 7

! -

$ ( "

& @ /

& "

" - %: & $ 1- 1):

0 "

# #-)

*<<3*2=: "

- . ?( / & 9

& -

" F& 8*<;*2=: > & &

ex parte - $ # #-) !

<A<:*2=: %& !

& ! !

- " ! &"

" "

, &"

" !

- "- & 9

" " $ ( % &

9 - - &

, &

- ""

% - &

& ! ?&

- " 9

" - "

9 "

- &

4& "

& !?&

9 & ! ""

C !

- &!

- "

" & " !

- "

-$ ,

&" "

" "8:

& &

" & - 9- ?

& %)

*2"

" -

*2-

) 5" # $ .When any person proposes to sell any agricultural land or village immovable property or urban immovable property or to foreclose the right to redeem any village immovable property or urban immovable property, in respect of which any persons have a right of preemption, he may give notice to all such persons, of the price at which he is willing to sell such land or property or the amount due in respect of the mortgage, as the case may be.

Such notice shall be given through any Court within the local limits of whose jurisdiction such land or property or any part thereof is situate and shall be deemed sufficiently given, if it be stuck up on the chaupal or other public place of the village, town or place in which the land or property is situate.6 # " #

8< " - !

) %. #&'$. The right of preemption of any person shall be extinguished; unless such person shall, within the period of the three months from the date on which the notice under Section 19 is duly given or within such further period not exceeding one year from such date as the Court may allow, present to the court a notice for service on the vendor or mortgagee of his intention to enforce his right of preemption. Such notice shall state whether the preemptor accepts the price or amount due on the footing of the mortgage as correct or not, and if not, what sum he is willing to pay. When the court is satisfied that the said notice has been duly served on the vendor or mortgagee, the proceedings shall be filed".

" #

*2 7

"& !

& &

- 9

- !

(& "&

"" !

? -

" !

% - " "#

*2 - !

- !

( & " &

" ! %& -

*2 " &

" !

9 &

" ! 9 "

" #

8<" 0

=8" $

<A<:*2=:

- $ & -

" & &

5& &

" "

( "

6('

) ('

!* 5

2,3

0 -!

& ?&

- ! !C%* 59!< ;#*&)& @ 97#* * '<%!'

77#!6& 1, "& ) 5where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden."

" 4/- #

(

+& ) ) + , , (1999) 3 SCC 422 & & ) 5it is the basic principal of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all6

& !

" #& 1C)8- $

- " "&

) &

)

.zameen dusre hissedar bhibech rahe hai' !

- &

?- !

& #

& - $ 9 " &

exparte

& "

7 #

=8 " $ 9

& ! -

" "! " ,! &"-!

" !9 " !

- (" -

0 ? &9 G -

" "

, -!

-? ? &

" "

" )*<%!6 %':5B&

& "

" - ""

& & ?&

9 & # F "

& )-

- "

" - &

"$ ( - ! "

# !9 %?!&B&

- """-

! &

! & &

-" ( &

! ! 0 F " "

)*<%!6 %':5B&

"& -

- &

6 #

" - !" " !

" " "

- &

9 "

- -

! & " F

" 4/- #

( !'A!8!A&5%

#!< "5 0& =& 5!'<*%A!

!'<

,.3

" " - G

"&& -

;*" 1-( 0 ! & " "

) C

"- ) ? & J C

& ! ?&

J C

- - - & &

- J %'"

% ,

) ? &

? 8

? &%A<

& ) 5Khewat No.70 (old No.67), Khatoni No.82, 83 and 84 Mustatil (Rectangle)//Khasra No.19//10(80), 11 (616), 22/1/1 (32), 21/1 (40), 20 (70); and 20//15/2 (64)"

" ? !-

& & ,&

" -

- !

& ) ? &

" "" &

" 0

*8<8*2== &

- " ) &

- " ,

) - D718 "? &%A<

))

" !

( &

) ? & 7 "

" " ( !

! %:A8

*3<3*2=: D713 D!

D71*

" ? & %A< ? %=8 =3 E =; !

7 "

3+ 8 , & ! " #

;;" 1- *==A " . /

;;- 7

) "44

$ - : An entry made in a recordofrights in accordance with the law for the time being in force, or in an annual record in accordance with the provisions of this Chapter and the rules thereunder, shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor."

) % " C

) 9

& "

- & ""

@& ) & !

& !

" ? - - " !

" - &

- " " 9 "

" ? - - "

) 9 &

- " F " ( 5!*")B&

$!&#

&)7*! "

- !

"& 7

) 5We, therefore, answer the question in the affirmative and hold that the sale of a specific portion of land described by

particular khasra numbers by a coowner out of the joint khewat would be a sale of share out of the joint land and preemptible under section 15(1(b) of the Punjab Preemption Act.6 !

5!*")B&

& !

- 4/- #

( A5!*B& $!&#

&)7*!,

!% %':5B& $!&#

&)7*! 4/- #

(** 5 " -

G " " - " )& - "

- #

*+*-" 6 1 " !

- " " - -

" "

- &!

- 89#* %':5B& $!&#

&)7*! & - "

& !

- )83 " &

) 583 #

- " !

" &

""&

) " "

6 0

" -

- " - " D!

- &

" visavis

- &

)

& !

- !

" )

9 9

& &

" ) " (

G ( "

-- & ""

) "? &%A< %'"

& !

- "

" "

& !?&

- "

( 2 "

" " ""

5 "

""& ! ?&

" 60 " &

" &

" "" ,

9 & " &!

"?&

- " !

" "$ - "-

!*+ % -

- 7

" - & ipso facto

& !?&

- " "!"

(

- " #

**; " D!

9 " ""

& ?

" C+

- "

" ""

4& "

" C+ (

" " "

- -

% -

7 &

" - " &

& 0

" C+ 7

9 & ! ?&

- "

- ! & " - - & " -

- & " !

- - &

& !?&

- "

# "

"!" *;<:*2=:9

8=<A*2=:9

82<A*2=:

( " 8; <<<@)&

*@+ "7 ! "

88" 0 "

83***2=A -

" * ** +8+A+1

& 9 -!

- "

& ! ?&

- " 9 "

9 - "

%=&

" "

- (

- " (

" ""

- -

, ! & " -!

( "

- & "

- & ""

& ! ?&

- " "! " 9

%'"

%%% ,&

- "" "

& @ "!" "

& ! F

" ( 0 " &

- -

! &" & &-4/- #

( "!9 *!A!&5B&

& 5!9 )'<#*B&

, "!9 *!A!&5B& $!&#- ( F ! "#

*+*-

."/" "

) "

" &

*;*+" ( #" 5!9 )'<#*B& $!&# ( )*AE*= "

)*AE*="

) "17. In modern times, the right of preemption based on statutes is very much a maligned law. During hearing of these appeals such rights have been characterised as feudal, archaic and outmoded and so on. But its origin which was based on custom and subsequently codified was out of necessity of the then village community and society for its preservation, integrity and maintenance of peace and security. In changed circumstances, the right of preemption may be called outmoded, but so long it is statutorily recognised, it has to be given the same treatment as any other law deserves. The right of pre emption of a cosharer is an incident of property attached to the land itself. It is some sort of encumbrance carrying with the land which can be enforced by or against the coowner of the land.

The main object behind the right of preemption either based on custom or statutory law, is to prevent intrusion of a stranger into the family holding or property. A cosharer under the law of preemption has right to substitute himself in place of a stranger in respect of a portion of the property purchased by him meaning thereby that where a co sharer transfers his share in holding, the other co sharer has right to veto such transfer and thereby prevent the stranger from acquiring the holding in an area where the law of preemption prevails. Such a right at present may be characterised as archaic, feudal and outmoded but this was law for nearly two centuries either based on custom or statutory law. It is in this background the right of preemption under statutory law has been held to be mandatory and not mere discretionary.

The Court has no option but to grant decree of pre emption where there is a sale of a property by another cosharer. And for that reason the Courts consistently have taken the view that where there is a sale of holding or property by a cosharer, the right of a preemption is required to be settled at the earliest either on the pre emptor's proving his qualification to preempt on the date of the sale, on the date of filing of suit, and on the date of the decree of the court of first instance or the vendee improving his status till the adjudication of the suit for preemption and after adjudication of the suit any loss of qualification by the preemptor or vendee improving his status equal or above to right of preemptor is of no consequence. In .

"It seems to be essential that a line should be drawn at some stage when the race between a pre emptor and a vendee ought to come to an end and after leaving the wellknown landmark of the date of the sale behind as one now must the farthest limit that can be granted to a vendee is that of 'the time of the adjudication of the suit' by the trial court."

(emphasis supplied) 18.

As noticed earlier, in 4 #- - 5-*1 "3 6 , the Privy Council held that a preemptor to maintain a suit for pre emption is required to prove his right of preemption on three important dates. The claimant must possess right of preemption on the date of sale. The claimant must possess the same right on the date when the suit is instituted and that right should continue to exist on the date of adjudication of the suit. However, it is a matter of no consequence whether the trial court decrees or dismisses the suit.

It has also been the consistent view of the Privy Council and various High Courts that a preemptor must possess qualification to preempt a sale on the date of decree of the court of first instance only for maintainability of the suit although it is immaterial that the preemptor loses the right of preemption after the adjudication of the suit either by his own act or the vendee improving his status equal to the preemptor during pendency of appeal filed against the decree of the trial court. This view of law is in consonance with the object behind the right of pre emption and held the field for over a century with which we are in respectful agreement, as nothing has been shown to us which may persuade us to take a contrary view and disturb the settled law."

- "" !"% !9B& $!&#

&)7*! &

!% %':5B& $!&#

&)7*! "

,!"% !9B& $!&#

"!" !

& !

- ): "

) 5As I have discussed above, there is no evidence on the record proving the transaction in dispute to be a sale; the essential requisites of sale have not been established. From the proved facts on the record, in my opinion, no proper inference in favour of the transaction being a sale can be drawn and the Courts below have clearly erred in doing so.6 ,!% %':5B& $!&# "

& ? ! " *2*"" ( - "

" I "

" ! &" ) ,,, " ( - & " ;;

& " 8<<:*2A2 !

! &" 5!9 )'<#*B& $!&#

&)7*!

*: F !

)

9 & ! ?&

- "

# " !-

& !

-" "" &

& -

& " - & !

4/- #

(

! " #

;* " 1- ( !'<5%* @!)* =& *%"5;% !6 %':5 !'<

"5#*&-

& &

"" *+ *:- ! 7

) "15. A perusal of the aforesaid judgments would show that the jurisdiction in second appeal is not to interfere with the findings of fact on the ground that findings are erroneous, however, gross or inexcusable the error may seem to be. The findings of fact will also include the findings on the basis of documentary evidence. The jurisdiction to interfere in the second appeal is only where there is an error in law or procedure and not merely an error on a question of fact. 16.

In view of the above, we find that the High Court could not interfere with the findings of fact recorded after appreciation of evidence merely because the High Court thought that another view would be a better view.6 *A (

- & ) i) respondent was a cosharer in khewat comprising the suit land;

ii) he was having neither any knowledge about the sale of suit land by the vendors; nor ever consented for the same;

impugned judgments and decrees passed by both the courts below are perfectly legal, valid and justified while decreeing the suit of the plaintiff/respondent for pre emption.

& -

" * 3+ +3+A+ 1 8; <<<@) K * ** +8+A+1 *2=A9- -

" & 7 " "

*= ,! &" -!

(

" "&

" "

;* " 1- (

*2 B

!')!*+

,- ,., C ?@

@% C -