RSA No.1438 of 1984 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1438 of 1984 Date of Decision: 13.01.2010 Hira Lal (Dead) through LRs. ..Appellant Vs. Laxman Parshad alias Chhailu Ram & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Sanjay Vij, Advocate, for the appellant. Mr.C.B.Goel, Advocate with Mr.Nitin Jain, Advocate. Mr.Vivek Soni, Advocate, --- Vinod K.Sharma,J. (Oral) This regular second appeal is directed against the judgment and decree dated 13.2.1984, passed by the learned courts below vide which suit filed by the plaintiff/appellant for pre-emption, was ordered to be dismissed. The plaintiff/appellant sought pre-emption of the sale on the RSA No.1438 of 1984 2 ground of being co-sharer as well as on the ground that he was a tenant over property sold by the vendor. It is not in dispute that during the pendency of the suit the property was partitioned and the status of the appellant as co-sharer came to an end. Learned trial court came to the conclusion that it was not possible for the appellant to claim tenancy against his co-owner and therefore, rejected the plea of tenancy also. In appeal the appellant chose to concede that the plea of tenancy raised by him was misconceived, and contested the right to pre- empt as co-sharer. However, learned appellate court also did not agree with the contention and dismissed the appeal. Mr.Sanjay Vij, learned counsel for the appellant contends that the following substantial questions of law arise in this appeal for consideration by this court:- 1. Whether a co-owner can be tenant under the other co- owner? 2. Whether the judgments of the learned courts below are perverse being contrary to settled principle of law, that tenancy is the outcome of contract between the parties irrespective of the status? Learned counsel for the appellant, however, did not contest the right of pre-emption, on the basis of him being co-sharer, firstly for the reason that during the pendency of the suit, before the learned trial court itself, the status of the appellant as co-sharer had come to an end, and RSA No.1438 of 1984 3 secondly for the reason that a right for pre-emption as co-sharer is no longer available, because of the amendment in the Pre-emption Act. Learned for the appellant claim pre-emption right on the basis of tenancy by placing reliance on the judgment of Hon'ble Supreme Court in the case of Life Insurance Corporation of India V/s M/s India Automobiles and Co. and Ors. 1990 (2) 345, wherein Hon'ble Supreme Court has been pleased to lay down as under:- “11. So far as the first question is concerned, we have no doubt that the Division Bench of the High Court has come to the correct conclusion. In our view, the conclusion of the learned Single Judge that the lease Ex.P.1, executed by the co- owners of the property in favour of one of them was invalid, was erroneous. Section 5 of the transfer of Property Act, 1882, clearly envisages transfers of property by a person to “one or more living person or to himself or to himself and one or more other living persons”. Whatever may be the position, in spite of this provision in respect of a purported transfer by a person to himself alone (which is very often the position in the case of trusts which, was considered by the House of lords in Rye V. Rye, 1962 AC 496, there is no reason to hold that a contract between a person with himself and others is invalid. The Division Bench, we think, has rightly distinguished the decisions in Girish Chandra V. Srinath, 3 CLJ 141, and Rye, V. Rye 1962 AC 496. The observations of Lord Denning, RSA No.1438 of 1984 4 extracted by the learned Judges are quite apposite to the situation in the present case.”, It was contended by the learned counsel for the appellant that substantial question of law as framed are required to be answered in affirmative, as there is no bar of co-sharer to be a tenant under the other co- sharer, if his share is given on lease and evidence is on record to prove tenancy. The contention of learned counsel for the appellant was that in the present case evidence was led to show that appellant was tenant under the vendor. This substantial question of law, as framed does not arise in this appeal, for the reason that this plea was conceded before the learned appellate court, and not raised, therefore, it can not be raised now in the second appeal it is clear from the finding recorded by the appellate court that the appellant had given up his claim of pre-emption on the ground of tenancy Para 5 of the judgment of learned lower appellate court reads as under:- “5. Concededly, the claim of preemption on the ground of tenancy was ill-founded. The sole point canvassed by the learned counsel for the appellant-preemptor was that the status of co-sharer claimed by preemptor did not come to an end because the partition order dated 2.2.83 passed by Assistant Collector Ist Grade had not become final as the appeal preferred RSA No.1438 of 1984 5 against that in the court of Collector Gurgaon, Ex.PX, was pending adjudication and per order dated 9.6.83, Ex.PY, the operation of that order had been stayed. According to learned counsel for the appellant, the plaintiff did not cease to be co- sharer simply on the passing of order of partition by the revenue officer as that was subjudice and was very likely to be quashed by the appellate authority and that under the law, the severance of status of co-sharer could take place only when there was execution of partition order and actual separation of the shares.” Thus, the substantial questions of law claimed do not arise for consideration in this appeal. No merit. Dismissed. 13.01.2010 (Vinod K.Sharma) rp Judge