High Court of Punjab and HaryanaRSA/30/1994allowed

(O&M) Ram Murti And Others v. Ram Parshad

2025-07-21Mr. Justice Pankaj Jain13 pages

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Whether the plaintiff has superior right of preemption in respect of the sale of the suit land? OPP.

Whether the sale price of Rs. 40,000/ has been fixed in good faith and actually paid. If so its effect? OPD. 3.

Whether issue No.2 is not proved then what was the market value of the suit land at the time of its sale?OPD. 4.

Whether the provisions of the Punjab Preemption Act are ultravires the constitution? If so its effect ?OPD 5.

Whether the plaintiff has no locusstand to file the present suit? OPD 6.

Whether 1/5th preemption has not been deposited in time? OPD 7.

Whether the plaintiff is estopped from filing the suit?OPD 8.

Whether the suit is time barred? OPD 9.

Whether the plaintiff has not been signed and verified in accordance with law? OPD 10.

Relief."

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.When any person proposes to sell

any agricultural land or village immoveable property or urban immoveable property or to foreclose the right to redeem any village immoveable property or urban immoveable property, in respect of which any persons have right of pre emption, he may give notice to all such persons of at which he is willing to sell such land or property or of 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. #$ !"

. The right of preemption of any person shall be extinguished unless such person shall, within the period of 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.

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Any person entitled to a right of pre emption may, when the sale or foreclosure has been completed, bring a suit to enforce that right."

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"12.

At the outset, it may be noted that the plaintiff Jagtar Singh, the predecessor of the present respondent, had filed the suits claiming himself to be the cosharer in the joint khewat along with the vendor Jit Singh, and had sought relief against the defendant Jhabbar Singh and others with regard to the possession of the suit lands, on the ground that he as a cosharer had a superior right to preempt the sales, and that he was not put to any notice of sale of the suit lands on or before the date of such sales. In a very loosely drafted plaint, the plaintiff had neither pleaded as to how he was the co sharer, nor had he impleaded the said Jit Singh, the owner of the suit lands, with whom he claimed to be the cosharer, and who had sold the suit lands to the defendants Jhabbar Singh and Others.

It is needless to say that in a suit for preemption, the vendor i.e., the owner of the suit land who had allegedly not given any notice of sale to the plaintiff as required to be given under Section 19 of the Preemption Act and against whom the right to preempt the sale is claimed would be a proper party if not a necessary party, for a complete and final adjudication on the issues involved in the suit. 13.

As held by this Court in U.P. AwasEvamVikasParishad vs. Gyan Devi2, necessary party is one without whom no order can be made effectively; and a proper party is one in whose absence an ef fective order can be made but whose presence is necessary for a com plete and final decision on the question involved in the proceedings. When a right to preempt the sale was claimed by the plaintiff Jagtar Singh as a cosharer in the lands along with the owner Jit Singh, al

leging that the mandatory provisions contained in Section 19 i.e., for giving notice to the preemptor, was not complied with by the owner or seller Jit Singh, his presence as the party defendant was desirable along with the other defendants Jhabbar Singh and Others, to effec tively and finally decide the disputes between the parties. Though, Order I, Rule 9 states that no suit shall be defeated by reasons of the misjoinder or nonjoinder of parties, care must be taken by the court to ensure that all the parties, be it the plaintiff or the defendant, whose presence is necessary for complete and final adjudication on the issues involved in the suit, are before the court. That is the rea son why the courts are empowered to strike out or add parties, at any stage of the proceedings as per Order I, Rule 10, C.P.C. 14.

Further, having regard to the absolutely sketchy and loosely drafted plaint in the instant case, the Court is tempted to regurgitate the basic and cardinal rule of pleadings contained in Order VI, Rule 2(1) of the Code, according to which every pleading (i.e., plaint or written statement) has to contain a statement in concise form of the material facts on which the party pleading relies for his claim or de fence, as the case may be. Of course, the pleading need not contain the evidence by which such material facts are to be proved, nonethe less the facts necessary to formulate a complete cause of action i.e., the material facts must be stated. Omission of a single material fact would lead to an incomplete cause of action and in that case, the statement of claim would become bad in the eye of law. 15.

Now, so far as the right of preemption is concerned, it may be noted that it is a very weak right and could be defeated by all le gitimate methods. This Court as back as in 1958, in case of Bishan Singh and Others vs. Khazan Singh & Another (supra), had setforth the contours of the right of preemption. It was opined therein by the fourJudge Bench that "11.....The right of preemption 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 repurchasei. e., the preemptor 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."

16.

The aforestated position was reiterated by this Court in Barasat Eye Hospital vs. Kaustabh Mondal3, and again in the re cent decision in case of Raghunath (Dead) by LRs. vs. Radha Mohan (Dead) Through LRs. And Others4, wherein it has been observed as under: "14. We have given our thoughtful consideration to the aforesaid issue and in order to determine the same, we had, at the inception itself, set out the judgment in Barasat Eye Hospital case [Barasat Eye Hospital v. KaustabhMondal, (2019) 19 SCC 767 : (2020) 4 SCC (Civ) 810] . We have, thus, referred to the earlier judicial view in para 10 of the judgment extracted aforesaid.

The historical perspective of the right of preemption shows that it owes its origination to the advent of the Mohammedan rule, based on customs, which came to be accepted in various courts largely located in the north of India. The preemptor has been held by the judicial pronouncements to have two rights. Firstly, the inherent or primary right, which is the right to the offer of a thing about to be sold and the secondary or remedial right to follow the thing sold. It is a secondary right, which is simply a right of substitution in place of the original vendee. The preemptor is bound to show that he not only has a right as good as that of the vendee, but it is superior to that of the vendee; and that too at the time when the preemptor exercises his right.

In our view, it is relevant to note this observation and we once again emphasise that the right is a "very weak right" and is, thus, capable of being defeated by all legitimate methods including the claim of superior or equal right."

17.

At this juncture, it would be also apt to mention that apart from the fact that the right of preemption is very weak right and ca pable of being defeated by all legitimate methods, the preemptor must establish that he had the right to preempt on the date of sale, on the date of the filing of the suit and on the date of the passing of the decree by the Court of the first instance. The preemptor or the claimantplaintiff who claims the right to preempt the sale on the date of sale, has also to prove that such right continued to subsist till

the passing of the decree of the first court. If the claimantplaintiff loses that right or the vendee improves his right equal or above the right of the claimant before the adjudication of the suit, the suit for preemption would fail.

18.

This proposition of law has been well settled by this Court since 1971, in case of &'()#$*+

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. In the said case, this Court had vap proved the full bench decision of Punjab High Court in Ramji Lal and Another vs. The State of Punjab and Others, AIR 1966 P&H 374, which had ruled that a preemptor must maintain his qualification to preempt upto the date of the decree."

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As regards the second contention, it is, conceded by Mr. Gandhi that it was not pleaded by his clients in the plaint that the sale was out of the surplus area or, in other words, the sale was not

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