RSA No.3810 of 2008(O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3810 of 2008 (O & M) Date of Decision: 16.02.2011 Ram Sarup and others ……Appellants Versus Bhagwan Singh and others …...Respondents Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Maharaj Kumar, Advocate for the appellants. Mr. Surinder Lamba, Advocate for the respondents. L.N. MITTAL, J (ORAL) Plaintiffs (plaintiff Nos.1 and 3 and legal representatives of plaintiff No.2) have filed the instant second appeal after the plaintiffs were successful in the trial Court, but have been non-suited by the lower appellate Court. Plaintiffs filed suit for preemption of sale made vide sale deed dated 05.06.1989 on the ground that plaintiffs being cosharers in the joint land of which share has been sold, have superior right of preemption. Defendants resisted the suit and inter alia pleaded that they are also co-sharers in the aforesaid joint land and, therefore, plaintiffs have no superior right of preemption. RSA No.3810 of 2008(O & M) - 2 - Learned Sub-Judge Ist Class, Charkhi Dadri vide judgment and decree dated 18.03.1994 decreed the plaintiffs’ suit for preemption. However, first appeal preferred by defendants/vendees has been allowed by learned District Judge, Bhiwani vide judgment and decree dated 30.08.2008 and thereby suit filed by the plaintiffs stands dismissed. Feeling aggrieved, plaintiffs have filed the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellants contended that appellants/plaintiffs being prior purchasers of share in the joint land have superior right of preemption. On the other hand, learned counsel for the respondents contended that defendants had also purchased other share in the joint land vide sale deed dated 06.10.1989 and had become cosharers in the joint land even prior to filing of the present suit and, therefore, plaintiffs had no superior right of preemption. I have carefully considered the rival contentions. No doubt, a cosharer had superior right of preemption at the relevant time. The plaintiffs were cosharers in the joint land. However, defendants also became cosharers in the joint land by dint of another sale deed dated 06.10.1989, even prior to filing of the preemption suit by the plaintiffs. Consequently, plaintiffs did not retain their superior or preferential right of preemption over the defendants. In order to succeed, preemptor has to maintain his superior right of preemption on the date of impugned sale deed, on the date of filing RSA No.3810 of 2008(O & M) - 3 - of the suit and till decree of the trial Court. In the instant case, however, the plaintiffs did have the superior right of preemption at the time of impugned sale dated 05.06.1989, but the plaintiffs did not have superior or preferential right of preemption at the time of filing of the suit or at the time of decree of the trial Court. Consequently, plaintiffs have been rightly non-suited by the lower appellate Court. Learned counsel for the appellants also contended that no notice was given to the appellants as required by Section 19 of the Preemption Act, 1913. This contention is of no help because the plaintiffs failed to maintain their superior right of preemption at the time of filing of the suit or till passing of the decree by the trial Court. Consequently, preemption suit of the plaintiffs cannot be decreed. For the reasons aforesaid, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. Accordingly, the appeal is dismissed. (L. N. MITTAL) JUDGE 16.02.2011 A.kaundal