RSA No.3382 of 2005(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3382 of 2005(O&M) Date of decision: 12.2.2009 Ved Parkash ......Appellant Versus Surender Singh and another ......Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Ramesh Sandhir, Advocate for the appellant. Ms. Vandana Malhotra, Advocate for the respondents. * * * Rakesh Kumar Garg, J. This is defendant's second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondent for possession of the suit land by way of pre-emption being a co-sharer has been decreed by the Courts below. As per the averments made in the plaint, Sube Singh son of Ami Lal defendant No.2 (now respondent No.2) sold 0 kanal 5 marla of land to defendant No.1 (now appellant) for a sale consideration of Rs.6,000/- comprising in Khewat No.73/68min Khatoni No.79 Khasra No.696 total land measuring 0 kanal 14 marals vide registered sale deed dated 13.12.1989 being owner in possession of 1/3rd share. As per the plaintiff he had purchased 0 kanal 5 marlas being 1/3rd share of the total land vide registered sale deed dated 27.6.1989 and therefore, he was co- sharer along with defendant No.2 in suit land comprised in Khewat No.73/68 Khatoni No.794 Khasra No.696 total measuring 0 kanal 14 marlas of the land in dispute at the time of sale of land measuring 0 kanal 5 marlas vide registered sale deed dated 13.12.1989 to defendant No.1 and RSA No.3382 of 2005(O&M) 2 being a co-sharer he had a preferential right to pre-empt the suit land. Hence, the suit. Written statement was filed by the appellant taking preliminary objections regarding maintainability of the suit, locus standi of the plaintiff to file the suit, the plaintiff being estopped by his own act and conduct from filing the suit, the suit being bad for partial pre-emption, for limitation, the plaintiff having not deposited 1/5th pre-emption money within time, suit being not valued for the purpose of court fee and jurisdiction and the plaintiff was a consenting party to the sale in dispute. On merits, it was admitted that Sube Singh was owner in possession of the suit land and he had sold 0 kanal 5 marlas in favour of defendant No.1-appellant for a sale consideration of Rs.8,000/- which was fixed in good faith and was actually paid and in pursuance of the sale deed dated 13.12.1989 possession of the suit land was also handed over to the appellant. The allegation of the plaintiff of being co-sharer in the suit, was denied. Additional plea was taken that after the appellant was put into actual possession of the suit land he had raised construction of boundary wall by spending an amount of Rs.10,000/- to which he is entitled to in addition to sale consideration and other expenses . Replication was filed by the plaintiff controverting the allegations of the defendants and reiterating the stand taken by him in the plaint. From the pleadings of the parties, the trial Court framed the following issues: “1. Whether the plaintiff is entitled to the possession of the suit land by way of pre-emption?OPP 2. Whether the suit is not maintainable?OPD 3. Relief.” RSA No.3382 of 2005(O&M) 3 The following additional issues were framed vide order dated 16.11.1994 2a) Whether the suit is bad for partial pre-emption, if so to what effect?OPD 2b) Whether the suit is time barred?OPD 2c) Whether the plaintiff has not deposited the 1/5th amount i.e. Zar-e-panjam well within the same, if so with what effect? OPD” On appreciation of evidence and the contentions raised by the parties, the trial Court decided issue No.1 in favour of the plaintiff- respondent and against the appellant. Issues No.2, 2a, 2b, 2c were also decided in favour of the plaintiff-respondent. However, the trial Court held that the defendant-appellant has failed to prove that he had spent Rs.10,000/- on the improvement of the land and was given liberty to remove the construction of walls by him before handing over the possession of the suit land to the plaintiff and ultimately the suit of the plaintiff was decreed. The plaintiff was held entitled to the possession of the suit land on payment of Rs.8,000/- as sale consideration, Rs.1,000/- as stamp charges plus Rs.500/- as registration charges minus Rs.1,000/- i.e.1/5th pre-emption money already deposited. The plaintiff was directed to deposit the remaining amount of Rs.7,900/- on or before 1.3.1995 failing which the suit of the plaintiff shall stand dismissed. The defendant was also given liberty to 1/5 pre-emption amount deposited by the plaintiff- respondent. Aggrieved by the aforesaid judgment and decree, defendant No.1 filed an appeal before the Lower Appellate Court. Learned counsel for the appellant contended that the present suit was not maintainable as the suit land does not fall within the definition RSA No.3382 of 2005(O&M) 4 of agricultural land or village immovable property and therefore, the provisions of the Act were not applicable to the suit land. It was also contended by him that the suit land was no more a joint land as the partition had already taken place and therefore, the plaintiff-respondent cannot pre-empt the sale on the plea that he is a co-sharer in the suit land. The plea of limitation was also raised by the defendant-appellant. However, the Lower Appellate Court vide impugned judgment and decree dated 7.6.2005 rejected the plea raised by the defendant-appellant and consequently dismissed this appeal. It is relevant to mention here that while rejecting the plea of the appellant regarding the applicability of the provisions of the Act in the present case as is argued by learned counsel for the defendant-appellant, the Lower Appellate Court held that the contention of the learned counsel for the appellant is liable to be rejected in view of the fact that no such plea was raised by the defendant in his written statement and the plea had been raised for the first time without any foundation in the pleadings. The Lower Appellate Court also held that in view of law laid down by this Court in Asa Nand and another V. Swatantarpaul Singh and others 1970 PLJ 579, there is no escape from the conclusion that the suit land involved in this case is village immovable property as defined in Section 3(ii) of the Act and the provisions of the act are fully applicable. Still not satisfied, the defendant has filed the present appeal in this Court challenging the judgment and decrees of the Courts below. Learned counsel for the appellant has argued that the following substantial question of law arises in this appeal:- “Whether the suit property is not pre-emptable?” In support of the question raised above, learned counsel for the appellant has vehemently argued that the Courts below have failed to RSA No.3382 of 2005(O&M) 5 appreciate that the property in suit was Gair Mumkin Bara at the time of sale, the institution of the suit and passing of the decree and, thus, it was neither agricultural land nor village immovable property as required by law to be a pre-emptable property and therefore, the provisions of the Act are not applicable in the facts of the present case and therefore, the judgment and decrees of the Courts below are liable to be set aside and the appeal filed by the appellant be accepted and the suit of the plaintiff-respondent be dismissed. On the other hand, learned counsel for the plaintiff-respondent has supported the findings of the Courts below and has argued that the Courts below on appreciation of evidence have recorded a finding of fact that the plaintiff-respondent being a co-sharer is entitled to pre-empt the sale made by respondent No.2 in favour of the appellant and no fault can be found with the findings of the Courts below. It was further argued by the learned counsel for the plaintiff-respondent that the contention of the appellant raised before this Court is beyond pleadings and therefore, the same is liable to be rejected. I have heard learned counsel for the parties. Section 4 of the Act reads as under: “Right of pre-emption; application of- The right of pre- emption shall mean the right of a person to acquire agricultural land or village immovable property or urban immovable property in preference to other persons; and it arises in respect of such land only in the case of sales and in respect of such property in the case of sales or of fore-closures of the right to re-deem such property.” Agricultural land and village immovable property has been defined in Section 3 sub section (i) (ii) respectively which reads as under:- RSA No.3382 of 2005(O&M) 6 (i) “agricultural land” shall mean land as defined in the Punjab Alienation of Land Act, 1900 (as amended by act 1 of 1907) but shall not include the right of a mortgagee whether usufructury or not, in such land; (ii) “village immovable property” shall mean immovable property within the limits of a village other than agricultural land; The above provisions of law provides that the right of pre- emption is available to a person to acquire agricultural land or village immovable property or urban immovable property. As per Section 3 sub section (i) the agricultural land shall mean the land as defined in the Punjab Alienation of Land Act, 1900 and as per Section 3(ii) the village immovable property means the immovable property within the limits of the village other then the agricultural land. Admittedly, the land in dispute in the instant case has been described in the revenue record as Gair Mumkin Bara. The learned counsel for the appellant has tried to show that the land in dispute is not a village immovable property for the reason that it lies outside the Abadi Deh of the village and is also not agricultural as the same is shown as Gair mumkin in the revenue record and therefore, according to him, the land is neither agricultural land nor village immovable property and therefore, the provisions of the Act are not applicable. I find no substance in this argument raised by the learned counsel for the appellant. It is evident from the provisions of Section 3(ii) of the Act that village immovable property shall mean immovable property within the limits of the village other than the agricultural land. There is no dispute that the land in dispute is immovable property and is situated within the limits of RSA No.3382 of 2005(O&M) 7 village Padha i.e. Revenue estate of village Padha. A similar question arose for consideration before this Court in Asa Nand's case (supra) wherein it has been laid down as under:- “Learned counsel for the appellant in this case has tried to show that the land in dispute is not the village immovable property, for the reason that it lies outside the abadi deh of the village. A bare perusal of the definition of the 'village immovable property' makes it clear that any land situated within the limits of a village, which is not an agricultural land, is to be considered 'village immovable property'. The learned counsel has tried to construe the words 'within the abadi deh'. I am afraid, there is no justification of the construction which the learned counsel has tried to put on the words 'within the limits of a village'. He has referred me to a decision of this court reported in Dittu Ram v. Balwant Rai and others 1959 PLR 869 to show that once it is held that the land in dispute is not an agricultural land, then nothing else remains in the case and the same is bound to be dismissed. The principle enunciated in Dittu Ram's case is not at all applicable to the facts of the present case because in that case the land which was the subject-matter of the sale, was situated within the municipal limits of Hisar town, and, therefore, the plaintiff in that case could only succeed if the land in dispute was held to be an agricultural land, otherwise the town immovable property did not attract the application of Section 15 of the Punjab Pre-emption Act and so when RSA No.3382 of 2005(O&M) 8 in that case it was held that the land in dispute was not an agricultural land, there was no option but to dismiss the suit. The facts of the case in hand are entirely different. Here, the land in dispute is situated in the village and even if it is held that it is not an agricultural land, it still remains the 'village immovable property' and provisions of Section 15 will be applicable to the land in dispute in this case.” In view of the rule of law laid down in the above noted case by this Court even though the land is not agricultural land, it shall remain village immovable property if the land is situated in village and the provisions of Section 15 shall be applicable to such land. The law laid down in the above authority is a complete answer to the contentions raised by the learned counsel for the appellant-defendant. Thus, in the instant case, there is no escape from the conclusion that the suit land involved in this case is village immovable property as defined in Section 3(ii) of the Act and the provisions of the pre- emption Act are fully applicable. The appeal is also liable to be dismissed for one more reason i.e. the question raised by the appellant is beyond pleadings. No such plea as raised above was taken up in his written statement by the appellant and was raised for the first time before the Lower Appellate Court without any foundation of pleadings. The question as raised by the appellant that suit land is not pre-emptable because the same is neither agricultural land nor village immovable property is a question of fact which could have been controverted by the plaintiff by placing on record the facts and evidence. The Hon'ble Apex Court in Bachhaj Nahar v. Nilima Mandal and another JT2008(13) SC 255 has held that a Court cannot make out a case not RSA No.3382 of 2005(O&M) 9 pleaded. The court should confine its decision to the question raised in pleadings. Nor can it grant a relief which is not claimed and which does not flow from the facts and the cause of action alleged in the paint. As already noticed, the plaintiff-respondent was co-sharer in the suit land at the time of sale, filing of the suit and the decree by the trial Court, so the plaintiff has got superior right of pre-emption. Moreover, this finding has not been challenged by the learned counsel for the appellant. No other point was raised. For the reasons recorded above, I find no merit in this appeal. No substantial question of law arises. Dismissed. February 12, 2009 (RAKESH KUMAR GARG) ps JUDGE RSA No.3382 of 2005(O&M) 10