RSA No. 2646 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 2646 of 1985 Date of Decision: 5.07.2010 Chatter Singh & Ors. ..Appellants Vs. Parkash Brahma & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.P.C.Chaudhary, Advocate for the appellants. Mr.H.N.Mehtani, Advocate, for respondents 2 & 3. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. (oral) This order shall dispose of RSA No.2642 and 2647 of 1985, titled Chatter Singh & Ors. Vs. Parkash Brahma & Ors., and Chamail Singh & Ors Vs. Smt.Krishana & Ors, respectively, as common questions of law RSA No. 2646 of 1985 2 and facts are involved in both these appeals. For the sake of brevity, the facts are being taken from RSA No.2642 of 1985. This appeal is directed by the appellants/defendants against the judgment and decree dated 6.8.1985 passed by the learned District Judge, Karnal, decreeing the suit filed by the plaintiff/respondents to pre-empt the land purchased by the defendants/appellants from Parkash Brahma. Parkash Brahma, defendant No.13, was owner of agricultural land measuring 14 kanals in village Jundla, Tehsil & District Karnal, comprised in Khewat No.584, Khatoni No.845, Rect No.299 and Killa Nos.10 and 11, as mentioned in the jamabandi for the year 1973-74. He sold the said land along with all the rights appurtenant thereto to defendants No.1 to 12 for ostensible consideration of Rs.28,000/- (Rupees twenty eight thousand only), vide registered sale deed dated 3.12.1981. It is the case of the plaintiffs/respondents that the suit land was actually sold for Rs.23,000/- (Rupees twenty three thousand only) which was the market value of the land. The plaintiffs/respondents claimed superior right of pre-emption to pre-empt the aforesaid sale on the ground that they are co-sharers in the suit land vide mutation No.3405 sanctioned on 16.7.1978 on the basis of sale deed dated 21.6.1978. With the aforesaid averments the plaintiffs sought a decree for possession of the land in suit, measuring 14 kanals with all the rights appurtenant thereto on payment of Rs.23000/- (Rupees twenty three thousand only) or any other amount which was to be determined by the RSA No. 2646 of 1985 3 court. The suit was contested by appellants/defendants No.1, 3, 4, and 7 to 12, where they denied the material averments of the plaintiffs. Plea was raised that the plaintiffs were estopped from filing the suit by their own act and conduct. It was pleaded that the suit land was owned by the vendor exclusively and that it was not joint with any other person. It was also the case of the defendants/appellants that the suit was filed at the instance of vendor. It was prayed that in case the suit was to be decreed then the defendants/appellants were entitled to sale price mentioned in the sale deed as well as registration charges and another sum of Rs.7000/- (Rupees seven thousand only), on account of improving the suit land. On the pleadings of the parties learned trial court framed the following issues:- 1. Whether the plaintiffs have superior right of pore- emption as alleged? OPP 2. Whether the sale consideration was actually paid or fixed in good faith as alleged? OPD 3. If issue No.2 is not proved what was the market value of the suit land at the time of sale? OP Parties 4. Whether the defendant/vendee incurred stamps and registration charges in the execution of the sale deed; if so, to what amount and to what effect? OPD 5. Whether the defendant/vendees have effected improvements over the suit land after the purchase, if so RSA No. 2646 of 1985 4 to what amount and to what effect? OPD 6. Whether the suit is barred by limitation as alleged? OPD 7. Whether the suit is bad for mis-joinder and non-joinder of necessary parties as alleged? OPD 8. Whether the civil court has got no jurisdiction to try the present suit? OPD 9. Whether the suit is bad for partial pre-emption? OPD 10. Whether the plaintiff has no locus standi to file the present suit as alleged? OPD 11. Whether the suit is collusive and benami as alleged ; if so to what effect? OPD 12. Whether any order under Order 32 Rule 3 CPC is required if so, to what effect? OPD 13. Relief. Learned trial court on appreciation of oral and documentary evidence brought on record recorded a finding on issue No.1, that the plaintiffs/ respondents did not have a superior right of pre-emption as they could not be said to be co-owners as they were purchasers of specific khasra numbers from the absolute owner i.e. Parkash Brahma and mutation of sale in their favour was also sanctioned. On issue No.2, learned trial court held, that the sale consideration as mentioned in the sale deed was actually paid and was fixed in good faith, whereas issue No.3 was also decided against the defendants RSA No. 2646 of 1985 5 and in favour of the plaintiffs in view of the finding recorded on issue No.2. On issue No.4, it was held that the defendants/appellants had incurred registration charges in execution of the sale deed. Issue No.5 was decided against the defendants and it was held that they have failed to prove any improvement made on the suit land. On issue No.6, suit was held to be within time. Issues No.7 to 12 were decided against the defendants as not pressed and consequently the suit was dismissed. The plaintiffs/respondents preferred an appeal against the judgment and decree passed by the learned trial court, wherein learned lower appellate court reversed the findings of the learned trial court on issue No.1 for the reasons that Ex.P.1, copy of the jamabandi for the year 1973-74 showed, that besides other, the following land was owned by Parkash Brahma: “ Khewat No.548/484 min, Khatoni No.842 to 845; Rect No.275, Khasra No.24 (2-12), 25 (6-13), Rect No.299/1 min (3-11), 10 (8-0), 11(8-0) and 21 (7-11).” Learned lower appellate court further held that Ex.P.2 mutation No.3405 showed that Parkash Brahma had sold the agricultural land by way of different sale deeds, details of which read as under: “Vendor: Parkash Brahma son of Barian Singh son of Ram Kishan Dass,r/o Karnal. Vendees: Zile Singh and Roshan Lal sons of Jhandu in equal RSA No. 2646 of 1985 6 shares ½ share, Rameshwar Singh and Suresh sons of Banarsi son of Jhandu in equal shares ¼ share; Balbir Singh Bahal Singh Kishan Singh son of Rati Ram son of Buta in equal share 1/2share; Sale: Vide sale deed No.2093 dated 21.6.78 in lieu of Rs.22,268/- Land sold: Khewat No.584 Khatoni No.842 and 845 min, Rect No.275 Khasra No.24 (2-12), 25 (6-13), Rect No.299 khasra No.1 (3-11), 10 (2-0), 21 (7-11).” Learned lower appellate court, thus, came to the conclusion, that according to Ex.P.2 after the sale Parkash Brahma continued to be the owner of rect No.299 khasra No.10(6-0) and khasra No.11 (8-0). Learned lower appellate court also held that by way of registered sale deed Ex.P.3 (DW 4/A), vendor Parkash Brahma sold to defendants No.1 to 12 whole of khasra No.11 and 6 kanals of khasra No. 10 both of Rect No.299. The learned lower appellate court came to the conclusion that these sale resulted in creation of a status of co-owner between the plaintiffs and Parkash Brahma. The learned court held that under section 15 (1) (b) of the Punjab Pre-emption Act as applicable in Haryana (for short the Act), co- owner has a preferential right of pre-emption. The learned lower appellate court by reversing the finding on issue No.1, decreed the suit. RSA No. 2646 of 1985 7 Mr.P.C.Chaudhary, learned counsel appearing on behalf of the appellants challenged the judgment and decree passed by the learned lower appellate court by raising the following substantial question of law: 1. Whether the judgment and decree of learned lower appellate court is the outcome of misreading of evidence and mis-application of law in recording a finding of co- ownership of plaintiffs/respondents with Parkash Brahma, thus, perverse? In support of the substantial question of law, learned counsel for the appellants contended that once it was not disputed that Parkash Brahma was the sole owner of the property in dispute then the sale by him of specific khasra numbers did not result into the status of co-ownership as the vendees became absolute owners of the property sold to them when mutation of sale was sanctioned. Parkash Brahma thereafter continued to remain as absolute owner of the remaining land and status of co-owner did not exist between the parties. In support of this contention learned counsel for the appellants placed reliance on the judgment of this court in the case of Rajinder Singh & Ors. Vs. Pirthi and Ors. 2007 (1) RCR (Civil) 552, wherein this court was pleased to lay down as under:- “16. In the present case, Nagina was the exclusive owner. He had sold specific khasra numbers to respondent Nos. 1 and 2 and conferred rights of exclusive ownership of those khasra RSA No. 2646 of 1985 8 numbers on respondent Nos. 1 and 2. The respondents did not get any right of partition with Nagina. It may be that Khewat was the same or Rectangle was the same but it does not make respondent Nos. 1 and 2 to be joint owners or co-sharers with Nagina who was the exclusive owner of some land out of which he sold specific part of the land to the respondents by specific khasra numbers. If Nagina had sold half share in the land owned by him to respondents No.1 and 2 then these vendees would have become co-sharers and they would have acquired a right to seek partition with Nagina. But since Nagina had sold specific khasra numbers to respondent Nos.1 and 2, he had conferred full rights of ownership of those khasra numbers. The khewat and khatauni numbers would have been changed in the next Jamabandi after the sale to respondent Nos.1 and 2 and therefore, respondent Nos. 1 and 2 cannot claim to be the joint owners or co-sharers with Nagina merely because the khewat or the Rectangle was the same as they had purchased specific khasra numbers and exclusive ownership was conferred on them with regard to those khasra numbers by Nagina. This Court is, therefore, of the opinion that by purchasing specific khasra numbers vide sale deed dated 7.7.1988, respondent Nos. 1 and 2 had not become co-sharers with Nagina. They had no right to seek partition from Nagina as they had become exclusive owners with regard to those khasra numbers RSA No. 2646 of 1985 9 irrespective of the fact that the Khewat or the Rectangle number was the same between the land of Nagina and of the land purchased by respondent Nos. 1 and 2 and Nagina remained the exclusive owner of the unsold land. 17. Since respondent Nos. 1 and 2 were not co-sharers or joint owners or co-owners with Nagina vendor of the land left with Nagina, therefore, they did not acquire any right of pre- emption with regard to subsequent sale made by Nagina in favour of the appellants.” Special Leave Petition No.5661 of 2007 filed against this judgment was dismissed by the Hon'ble Supreme Court. Mr.H.N. Mehtani, learned counsel appearing on behalf of the plaintiffs/respondents No. 2 & 3, on the other hand, supported the judgment and decree passed by the learned lower appellate court by pleading that once a owner has sold a portion of khasra number by way of registered sale deed to the vendee, the status of vendee and vendor thereafter was that of co-sharer and therefore, learned lower appellate court rightly held the plaintiffs/respondents to be co-sharers and passed a decree in their favour as it could not be disputed that co-sharer has a superior right of pre-emption under section 15 (1) (b) of the Act. In support of this contention, learned counsel for the plaintiffs/respondents placed reliance on the judgment of Hon'ble Full Bench of this court in the case of Bhartu Vs. Ram Sarup 1981 PLJ 204, RSA No. 2646 of 1985 10 wherein Hon'ble Full Bench of this Court was pleased to lay down that sale of a specific portion of land described by a particular khasra numbers by a co-owner out of the joint khewat, would be a sale of share out of the joint land which would be pre-emptible under section 15 (1) (b) of the Act. This judgment cannot have any application to the facts of the present case as Parkash Brahma was not co-sharer of the land out of which specifickhasra numbers were sold. Judgment of Hon'ble Full Bench is based on the proposition that sale of specific khasra by a co-owner is to be treated to be sale out of share of the property but this cannot apply to sale by absolute owner of the property in which there is no other co-owner. Learned counsel for the plaintiffs/respondents thereafter placed reliance on the judgment of Hon'ble Supreme Court in the case of Jai Singh & Ors. Vs. Gurmej Singh 2009 (1) RCR (Civil) 874, wherein Hon'ble Supreme Court was pleased to lay down, that sale of specific portion of land by one of the co-owners out of joint khewat gives right to the co-owner to pre-empt the sale under section 15 (1) (b) of the Act. This view is same as the one taken by the Full Bench of this court in the case of Bhartu Vs. Ram Sarup (supra). The reasons for distinguishing the said judgment apply to this judgment also. On consideration, I find force in the contentions raised by the learned counsel for the appellants. Sale by an absolute owner of share of property by specific khasra number cannot result in the relationship of co- owner as held by learned lower appellate court. After mutation of sale was sanctioned, plaintiffs became absolute owners of the property sold to them RSA No. 2646 of 1985 11 and was not co-owner with Parkash Brahma, and subsequent sale of the land by Parkash Brahma in favour of the defendants, therefore, could not be pre-empted by the plaintiffs by claiming to be the co-owners. For the reasons stated above, substantial question of law raised is decided in favour of the appellants/defendants. Consequently, the appeal is allowed. The judgment and decree passed by the learned lower appellate court is set aside and that of the learned trial court is restored but with no order as to costs. (Vinod K.Sharma) 5.07.2010 Judge rp