R.S.A. No. 267 of 1992 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 267 of 1992 (O&M) Date of decision: 10.03.2010 Gurdeep Singh ....Appellant versus Mange Ram and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Ms. Kamalpreet Kaur, Advocate, for the appellant. Mr. Ashok Singla, Advocate, and Mr. Ravish Bansal, Advocate, for the respondents. *** VINOD K. SHARMA, J. (ORAL) This judgment shall dispose of RSA No. 267 of 1992 and RSA No. 897 of 1992 both titled Gurdeep Singh Vs. Mange Ram and others, as common questions of law and facts are involved. This appeal, by the defendant/appellant, is directed against the judgment and decree dated 27.1.1992, passed by the learned Courts below, vide which the suit filed by the plaintiff/respondents for possession by way of pre-emption of sale, stands decreed. The plaintiff/respondents filed a suit, on the pleadings, that Ram Partap, Damodar Parshad, Bimal Kumar sons of Ram Chand and Smt. Bimla Devi widow of Ram Nar Singh son of Ram Chand were previously the joint owners in equal shares to the extent of 2/3rd share in the suit land measuring 48 kanals 5 marlas, situated at village Farwain. The owners sold the land in favour of the vendee-defendants through R.S.A. No. 267 of 1992 (O&M) -2- registered sale deed dated 12.11.1987 for ostensible consideration of Rs.46,000/- (Rupees forty six thousand only), though the sale price fixed, was only Rs.30,000/- (Rupees thirty thousand only). The balance amount was said to have been fictitiously written, in order to defeat the right of pre-emption. The pleaded case of the plaintiff/respondents was, that the suit land was under tenancy of Shera, Sheo Karan and Maru on payment of 1/3rd batai. Sh. Shera died in the year 1982, leaving behind his widow Smt. Rammi and four sons, namely, Mange Ram, Devi Lal, Om Parkash and Ram Kumar. Sh. Sheo Karan also died in the year 1983, leaving behind Jai Kauri as his widow. The suit was filed by Ram Kumar and Smt. Jai Kauri, on the basis of tenancy right acquired by way of inheritance, to claim superior right of pre-emption. The suit was contested, by raising preliminary objection, that plaintiff/respondents had no locus standi and cause of action to file the suit. The suit was said to be not maintainable in the present form. It was asserted, that the sale price was correctly fixed at Rs.46,000/- (Rupees forty six thousand only). The defendants claimed that they had taken possession on 20.10.1985, of the suit land i.e. 2/3rd share of the total land measuring 48 kanals 5 marlas from Maru son of Dhanna, Pehlad Rai, Deepla Ram and Sahab Ram sons of the deceased tenant Sheo Karan, on payment of Rs.42,000/- (Rupees forty two thousand only). A writing was also executed to this effect. On receipt of the amount, Maru etc. suffered a decree dated 13.11.1987 in favour of the defendants. After taking possession from the tenants, the defendants purchased the ownership right in the suit land from the previous owners vide impugned sale deed dated 12.11.1987, and claimed themselves to be the owners in R.S.A. No. 267 of 1992 (O&M) -3- cultivating possession of the suit land. In the replication, averments made in the plaint were reiterated and those in the written statement were denied. On the pleadings of the parties, the learned trial Court framed the following issues: - “1. Whether the plaintiffs are entitled to pre-empt the suit land as alleged in the plaint? OPP 2. Whether the sale price of Rs.46,000/- was paid and fixed in good faith? OPD 3. If issue No.2 is not proved then what was the market value of the suit land at the time of sale? OPD 4. Whether the plaintiff is not in possession of the suit land? OPD 5. Whether the defendants have paid stamp and registration charges, if so how much? OPD 6. Whether the defendants have paid Rs.42,000/- to Maru etc., as alleged, if so its effect? OPD 7. Whether the suit is bad for non-joinder and mis- joinder of necessary parties? OPD 8. Whether the plaintiffs are entitled to Rs.10,000/- on account of improvement in the suit land? OPD 9. Relief.” On appreciation of evidence, oral as well as documentary, the learned trial Court on issue No.1 held, that the plaintiffs were entitled to pre-empt the suit land. The learned trial Court also held, that the sale price of Rs.46,000/- (Rupees forty six thousand only) was fixed in good faith. In view of the finding on issue No.2, issue No.3 was treated to be redundant. On issue No.4, the learned trial Court, on appreciation of R.S.A. No. 267 of 1992 (O&M) -4- evidence, recorded a finding, that the plaintiffs and vendee-defendants were in joint possession of the suit land to the extent of their shares mentioned therein. The plaintiffs, therefore, were held to be in joint possession of the land in their possession as tenants. On issue No.5, it was held, that the defendants paid the stamp duty and registration charges, which they were entitled to recover from the plaintiff/respondents. On issue No.6, the learned trial Court held, that the impugned sale deed Ex.D2 by Maru etc. did not make the vendee-defendant as joint tenant with the plaintiffs and reiterated the finding on issue No.1, that the plaintiff/respondents had a superior right of pre-emption as tenants. Issues No.7 and 8 were also decided against the defendants for want of evidence. Consequently, the suit filed by the plaintiff/respondents was decreed for possession by way of pre-emption on payment of Rs.46,000/- (Rupees forty six thousand only) less 1/5th of the amount deposited at the time of filing of the suit plus Rs.5,750/- (Rupees five thousand seven hundred and fifty only) as stamp and registration charges. The amount was directed to be paid by 6.12.1990. The learned trial Court further ordered, that, in case, the payment was not made within the stipulated period, the suit would be deemed to have been dismissed. In appeal, the learned lower appellate Court while affirming the findings, modified the finding recorded by the learned trial Court qua joint tenancy by holding, that the defendants had not become joint tenants of the property in dispute. R.S.A. No. 267 of 1992 (O&M) -5- Ms. Kamalpreet Kaur, learned counsel, appearing on behalf of the appellant, contends, that the appeal raises the following substantial questions of law: - “1. Whether the sale by a lady vendor could be pre- empted by a tenant? 2. Whether in view of the judgment and decree dated 13.11.1987, the purchase by the defendants as tenants, could be pre-empted by plaintiff/respondents by claiming superior right of pre-emption?” In support of the substantial question of law, the learned counsel for the appellant, contended, that it was not in dispute, that one of the vendors was a lady, therefore, as per the provisions of Section 15 (2) of the Punjab Pre-emption Act, as applicable to Haryana, the tenant had no right to pre-empt the sale. In case, the tenant was not entitled to pre-empt part of the sale, then the balance claim will be that of partial pre-emption, which was not permissible. The suit filed by the plaintiffs, was liable to be dismissed because of the bar under Section 15(2) of the Punjab Pre-emption Act, as applicable to Haryana. The learned counsel for the appellant contended that the substantial questions of law be answered in favour of the appellant, and the appeal be accepted by dismissing the suit filed by the plaintiff/respondents This contention of the learned counsel for the appellant is rightly opposed by the learned counsel for the respondents, by placing reliance on the judgment of the Hon'ble Supreme Court in Atam R.S.A. No. 267 of 1992 (O&M) -6- Parkash Vs. State of Haryana, 1986(1) PLR 329, declaring Section 15 (2) of the Punjab Pre-emption Act to be ultra vires the Constitution. The contention, therefore, was that once a provision was declared to be ultra vires the Constitution, it had no force of law and it cannot be, therefore, said that the plaintiff/respondents, did not have a superior right of pre-emption. The Hon'ble Supreme Court in Atam Parkash Vs. State of Haryana (supra) was pleased to declare Clauses 'first', 'secondly' and 'thirdly' of Section 15(1)(a), Clauses 'first', 'secondly' and 'thirdly' of Section 15(1)(b), Clauses 'first', 'secondly' and 'thirdly' of Section 15(1)c) and whole of Section 15(2) to be ultra vires the Constitution. In view of the authoritative pronouncement of the Hon'ble Supreme Court, declaring provisions of Section 15(2) to be ultra vires the Constitution of India, the contentions raised by the learned counsel for the appellant cannot be accepted, and the right of the plaintiff/respondents cannot be defeated on the ground, that one of the vendors was a lady. The first substantial question of law is answered against the appellant. On the second substantial question of law, the learned counsel for the appellant contended, that it was proved by way of judgment and decree, that a declaration was issued in favour of the defendant/appellant, that he was the tenant in pursuance to the purchase of tenancy right from the co-tenant. Therefore, it was not permissible for the tenant to pre-empt the purchase by another tenant. It was the contention of the learned counsel for the appellant, that it was for the this reason, that the defendant/appellant came in possession of the property R.S.A. No. 267 of 1992 (O&M) -7- much prior to the purchase. The possession was taken on basis of purchase of tenancy rights, therefore, on the date of sale, he was the tenant though declaration in this regard was passed only on 13.11.1987. Learned counsel for the respondents, however, disputed this contention by contending, that in the suit for declaration the defendant/appellant had not chosen to implead the landlord as one of the parties to claim tenancy under him. On consideration, I find no force in the contentions raised by the learned counsel for the appellant. The learned lower appellate Court, on appreciation of evidence, rightly came to the conclusion that joint possession of the appellant was not proved, as the tenants were shown to be in possession of the property in dispute as tenants. Even if the plaintiffs were tenants over the part of the property they had right to pre- empt whole of the sale, which in fact has been done. In absence of a landlord, it was not possible to seek declaration of tenancy, as the tenancy rights can be enforced against the landlord/owner of the property and not qua the third party. Therefore, no legal, value could be attached to the decree dated 13.11.1987, to defeat the right of the plaintiff/respondents. Second substantial question of law is also answered against the appellant. Consequently, finding no merit in this appeal, it is ordered to be dismissed, but with no order as to costs. (Vinod K. Sharma) Judge March 10, 2010 R.S.