R.S.A.No. 3746 of 2008(O&M) {1} In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 3746 of 2008(O&M) Date of Decision:September 16, 2009 Suresh Kumar ---Appellant versus Nand Kishore ---Respondent Coram: HON'BLE MRS. JUSTICE SABINA *** Present: Mr. B.R.Gupta,Advocate, for the appellant Mr.Parveen Hans, Advocate, for the respondent. *** SABINA J. Plaintiff – Nand Kishore had filed a suit for possession by way of pre-emption. Additional Civil Judge ( Senior Division), Hansi vide judgment and decree dated 26.2.2007 decreed the suit of the plaintiff. Aggrieved by the same, defendant preferred two appeal and the same were dismissed by Additional District Judge, Hisar vide judgment and decree dated 16.9.2008. Hence, the present appeal by the defendant. The facts of the case as noticed by the learned Additional District Judge, in paras 2 to of its judgment read as under:- “The brief facts of the plaintiff's case are that the defendants No. 2 to 5 Bhim Sain, Bhushan sons, Raj Dulari and Poonam R.S.A.No. 3746 of 2008(O&M) {2} daughters of Bhagwan Devi d/o Mool Chand, sold land measuring 8 kanals 4 marlas being 164/2011 share out of the total land measuring 100 kanals 14 marlas comprised in Khewat No. 3828 Khatoni No. 4756 to 4759, situated at Moja Hansi, to Suresh Kumar defendant No. 1 vide a registered sale deed No. 1210 dated 10.6.2004 through power of attorney Sanjay Malik son of Madan Lal r/o 432/18 Subhash Nagar Hansi for a fictitious sale consideration of Rs. 2,05,000/- is fake and forge, without any notice under the Punjab Pre- emption Act, 1913. it was alleged that the sale has been effected secretly without notice to the plaintiff. It was also averred by the plaintiff that he was in cultivating possession of the land measuring 10 kanals comprised in khasra No. 592//1/2(2-0) 10(8-0), Khewat No. 3828/3560, as per jamabandi for the year 1997-97, as Mujara Gair Marusi on 1/3rd batai. It was also averred that the plaintiff, his father and predecessor in interest Sh. Bhagwan Dass was cultivating the above said land as Mujara Gair Marusi on 1/3rd Batai under the vendors, his right of pre-emption is superior to vendee/defendant No. 1 Suresh. It was further averred that in fact the land was sold for a consideration of Rs. 55,000/- however, the defendant No. 1 has got incorporated Rs. 2,05,000/- in collusion with the remaining defendants to defeat the right of the plaintiff. The plaintiff is in actual possession of the suit land and has asked the defendant No. 1 to give R.S.A.No. 3746 of 2008(O&M) {3} symbolic possession of the suit land to the plaintiff on payment of Rs. 55,000/- but ion vain hence this suit. 3. Defendant No; 1 filed written statement admitting that he had purchased the suit land specific share vide registered sale deed No. 1210 dated 10.6.2004 for a consideration of Rs. 2,05,000/-. It was denied that the sale deed was fictitious and sham transaction and was effected in a secret manner. It was averred that the plaintiff with the vendors who are in his relations was present in person and was an instrument in settling the deal between both the parties. It was also averred that the plaintiff had played an active part in the execution of sale deed in favour of the defendant No. 1 and had also assured not to exercise the right of pre-emption regarding the sale in question and therefore there was no occasion to give any written notice to the plaintiff, nor it was necessary as the plaintiff himself was very much present throughout the proceedings of the suit land. However, it was admitted that the name of his father was mentioned in the column of cultivation in girdawari illegally, against law and facts and the same was being repeated by the revenue officials in collusion with the plaintiff and the entries had been made in favour of the plaintiff against law and are null & void and not binding upon the rights of the defendants and are liable to be set aside. The plaintiff has no right to file the pre-emption suit. It was further averred that the sale was settled in favour of the defendant No. 1 at the behest of the plaintiff for a sum of Rs. 2,05,000/- and the R.S.A.No. 3746 of 2008(O&M) {4} revenue record being against the law and facts is not binding on the rights of the defendant . All other allegations were denied and raised preliminary objections like locus standi and cause of action, estoppel and maintainability of the suit etc. and prayed that the suit be dismissed.” On the pleadings of the parties, trial court framed the following issues:- “(1)Whether the plaintiff is entitled to the possession of the disputed property by way of pre emption as alleged? OPP (2)Whether the plaintiff is a tenant on the part of the disputed property and as such has preferential right over the disputed property as alleged? OPP (3)Whether the sale consideration projected in the sale deed dated 10.6.2004 as Rs. 2,05,000/- wring and in fact the suit6 land was sold for a sale consideration of Rs. 55,000/- as alleged? OPP (4)Whether the plaintiff has not locus standi and cause of action to file the present suit? OPD (5)Whether the plaintiff is estopped by his own act and conduct from filing the present suit?OPD (6)Whether the suit is time barred?OPD (7)Whether the suit is not maintainable in the present form? OPD (8)Whether the suit is not properly valued for the purposes of court fee and jurisdiction? OPD R.S.A.No. 3746 of 2008(O&M) {5} (9)Whether the civil court has no jurisdiction to try and decide the present suit? OPD (10)Relief After hearing learned counsel for the parties,I am of the opinion that the present appeal is devoid of any merit. Plaintiff had filed a suit for possession by way of pre-emption. The sale deed in question was executed by defendants No. 2 to 5 in favour of defendant No. 1 on 8.6.2004 which was registered on 10.6.2004. Admittedly, plaintiff was a tenant under the defendants No. 2 to 5 at the time of execution of the sale deed. Both the courts below after appreciating the evidence led by the parties have held that the plaintiff was cultivating the suit land on 1/3rd Batai. Earlier to the plaintiff, his father Bhagwan Dass was in cultivating possession of the suit land under the vendors on 1/3rd batai. In these circumstances, the plaintiff being tenant under the vendors was competent to file suit for pre-emption. A pre-emptor must have the right to pre-empt the sale on the date of sale, date of filing of the suit and on the date of passing of the decree by the Court of the first instance only. A pre-emptor who claims right to pre-empt the sale on the date of sale must prove that the such right continued to subsists till the passing of the decree of the first court. In the present case plaintiff succeeded in establishing his case. Hence, both the courts below have rightly decreed the suit of the plaintiff. No substantial question of law arises in this appeal. Accordingly, this appeal is dismissed. (SABINA) JUDGE September 16, 2009 PARAMJIT