R.S.A. No. 658 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 658 of 2007 Date of decision: 21.05.2009 Shangara Singh (dead) through LRs ....appellant versus Gurdeep Singh and others ....respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. M.S. Bedi, Advocate, for the appellant. Mr. H.S. Bhullar, Advocate, for respondents No. 9 to 11. *** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 5.9.2006 passed by the learned lower appellate Court dismissing the suit filed by the plaintiff/appellant claiming preferential rights to purchase the property sold by respondents No. 1 to 8 to respondents No. 9 to 11 on 14.2.1997. It was claimed by the plaintiff/appellant that he being co- sharer has a preferential right of purchase under Section 22 of the Hindu Succession Act. The learned trial Court decreed the suit by holding that plaintiff being co-sharer, had a preferential right to purchase the property. R.S.A. No. 658 of 2007 -2- The judgment and decree passed by the learned trial Court stands reversed by the learned lower appellate Court. Mr. M.S. Bedi, the learned counsel appearing on behalf of the appellant, contends that the appeal raises the following substantial question of law: - "Whether the learned lower appellate Court has mis- read the provisions of Section 22 of the Hindu Succession Act to non-suit the plaintiff/appellant though there was no dispute that plaintiff was co- sharer?" In support of the substantial question of law, the learned counsel for the appellant contends, that the learned trial Court had rightly decreed the suit, as plaintiff's preferential right to purchase was governed under Section 22 of the Hindu Succession Act, which could not be negatived by holding that Pre-emption Act stands repealed. On consideration, I find no force in the contention raised by the learned counsel for the appellant. The plea raised by the plaintiff/appellant deserves to be rejected for more than one reason. The facts proved on record are, that there was an agreement to sell in favour of defendants No. 1 to 8 dated 17.12.1994, which stipulated that the plaintiff/appellant could get the conveyance deed executed by 8.12.1995. The plaintiff/appellant failed to get the sale deed executed in his favour. The plaintiff chose to file suit for injunction on 8.4.1996 when the cause to file suit for specific performance was available. The suit for injunction filed by the plaintiff/appellant was dismissed and in appeal, the order was affirmed. The said decree has attained finality. The plaintiff/appellant, therefore, lost the right to file a suit for specific R.S.A. No. 658 of 2007 -3- performance, as the suit for specific performance would be hit by Order 2 Rule 2 of the Code of Civil Procedure. The plaintiff/appellant, therefore, on the principle of estoppel was stopped from claiming preferential right to purchase having not availed the remedy available to him under the agreement to sell. Even otherwise, reading of Section 22 of the Hindu Succession Act clearly shows that it is only inter se between the legal heirs on inheritence, that if one legal heir wishes to transfer his property to third party, the other legal heir would get preferential right to purchase the same. The said right is not available to a person merely because he happens to be co-sharer. The learned lower appellate Court, therefore, was right in coming to the conclusion that Section 22 of the Hindu Succession Act was not applicable on the facts of the case. The substantial question of law raised is, thus, answered against the appellant. No merit. Dismissed. (Vinod K. Sharma) Judge May 21, 2009 R.S.