RSA No. 203 of 1985 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH RSA No. 203 of 1985 (O&M) Date of Decision : 20.5.2010 Bal Ram .......... Appellant Versus Smt. Sarbati ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. H.P.S. Bhinder, advocate for the petitioner. Mr. Ashok Verma, Advocate for the respondent. **** VINOD K. SHARMA, J. (ORAL) C.M. No. 2907-C of 2010 C.M. is allowed, the order dated 5.2.2010 is recalled and the appeal is restored to its original number. RSA No. 203 of 1985 This judgment shall dispose of two regular second appeals i.e. RSA Nos. 203 & 204 of 1985 titled Bal Ram Versus Smt. Sarbati and Bal Ram Versus Gopal & others respectively, as the common questions of law and facts are involved. For the sake of brevity facts are being taken from RSA No. 203 of 1985 titled Bal Ram Versus Smt. Sarbati. The plaintiff / appellant by way of this regular second appeal RSA No. 203 of 1985 -2- challenged the judgment and decree passed by the learned Courts below, vide which the suit filed by the plaintiff for possession of the land by way of pre-emption, stands dismissed. The plaintiff / appellant filed a suit to pre-empt the sale made by his brother Phussa Ram in favour of the defendant / respondent by claiming himself to be related to the vendor, and being co-sharer. The learned Courts below, dismissed the suit filed by the plaintiff / appellant, for the reason, that the vendee being a lady, the sale could not be pre-empted. The learned counsel for the appellant contends, that this appeal raises the following substantial questions of law for consideration by this Court :- 1. Whether the learned Courts below were justified in dismissing the suit filed by the plaintiff / appellant by treating the vendee to be a lady, though, there were other vendees also? 2. Whether the plaintiff / appellant had right of pre- emption? Partial pre-emption is not permissible, therefore, once it was found, that one of the vendee was a lady, it was not permissible for the plaintiff / appellant to pre-empt, the share of the other vendees, as it would have resulted in partial pre-emption. Even otherwise, once the stand taken by the plaintiff / appellant was, that he was closely related to the vendor Phussa Ram, and claimed the right of pre-emption being co-sharer, he was not entitled to pre-empt the sale, in view of the law laid down by the RSA No. 203 of 1985 -3- Hon'ble Supreme Court in the case of Jagdish and others Vs. Nathi Mal Kejriwal and Others 1987 P.L.J. 14, wherein the Hon'ble Supreme Court has been pleased to lay down as under :- “3. It is argued by the learned counsel for the petitioners that since the suit land belonged to the joint family and it had not been sold by all the co- sharers they were entitled to claim the right of pre-emption under clause 'Fourthly' of Section 15 (1)(b) of the Act because they happened to be the non-alienating co-sharers. Although there is no specific finding that the property is the joint property in this case, we shall assume for purposes of this judgment that the suit land was joint property. In order to understand the meaning of the words 'other co-sharers' in Section 15(1)(b) we have to read the Act as it stood before the decision in Atam Prakash's case (supra). It is seen that the expression “other co-sharers' in clause “Fourthly' of Section 15(1)(b)of the Act refers to only those co-sharers who do not fall under clause 'First' or 'Secondly' or 'Thirdly' of Section 15(1)(b) of the Act. Since the petitioners admittedly fall either under Clause 'First' or under Clause 'Secondly” of Section 15(1)(b) of the Act they are clearly outside the scope of clause 'Fourthly'. Therefore, the petitioners cannot claim the right of pre-emption under clause 'Fourthly'. We do not, therefore, find any substance in this contention which was used for the first time before the High Court. The suit was, therefore, rightly dismissed by the High Court holding that the petitioners were no longer RSA No. 203 of 1985 -4- entitled to any relief under the Act. This petition, therefore, fails and it is dismissed.” In view of the settled law, the substantial questions of law raised, are answered against the appellant. Finding no merit, appeal is ordered to be dismissed, but with no order as to costs. 20.5.2010 ( VINOD K. SHARMA ) 'sp' JUDGE