RSA No. 525 of 1994 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 525 of 1994 (O&M) Date of Decision: April 26, 2010 Kehar Singh and Others ....Appellants VERSUS Balbir Singh and Others ...Respondents CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR JAIN. Present: Mr. Parminder Singh, Advocate and Mr. Sunil Sharma, Advocate for Mr. Amit Jain, Advocate for the Appellants. Mr. Vikram Singh, Advocate for respondents. ***** RAKESH KUMAR JAIN, J.(ORAL) This appeal is directed against judgment and decree of both the Courts below whereby suit of the plaintiff for possession by way of pre-emption, has been decreed. A few related facts pleaded by the parties are that Harbhajan Kaur (defendant No.3) and Amrit Singh (defendant No.4) sold land measuring 10 kanals 13 marlas comprised in khewat No.19 rect. No. 23 Killa No. 12(8-0), 13 (8-0) being 2/3 share, out of total agricultural land measuring 16 kanals as per jamabandi for the year 1986-87, alongwith all the rights appurtenant thereto, situated in the revenue estate of village Manak Majra, to the vendees/defendants No.1 & 2 vide sale deed dated 17.5.90 for an ostensible consideration of Rs.1,33,000/-. It was alleged that the amount of Rs.1,00,000/- was given by the vendees to the vendors and the remaining amount was otherwise incorporated in RSA No. 525 of 1994 -2- the sale deed in order to ward off the prospective pre-emptors and that no notice of the sale was given to the plaintiffs who had become co-sharers in the joint khewat by way of purchase on the basis of sale deed dated 17.5.1988. As per averments brought on record, the possession was sought by way of pre-empting the impugned sale deed dated 17.5.1990 by the vendors to the vendees on the ground of co-sharership. In the written statement, besides raising preliminary objections, on merits, it is alleged that defendants No.3 and 4 had sold land measuring 10 kanals 13 marlas in their favour for a consideration of Rs.1,33,000/- on the basis of which mutation was also sanctioned. It is denied that the plaintiffs are the co-sharers and have got any right of pre-emption in respect of the suit land. On the pleadings of the parties, following issues were framed: - “1. Whether the plaintiff being co-sharer have got a superior of pre- emption to pre-empt the suit land? OPP. 2. Whether the plaintiffs have no locus standi to file and maintain the present suit? OPD. 3. Whether 1/5th pre-emption money has not been deposited in time?OPD 4. Relief. 5. One additional issue was framed. 1-A Whether the defendants have spent Rs.30,000/- on the suit land by installing tubewell etc.?OPD.” Both the parties led their oral as well as documentary evidence. The learned trial court vide its order dated 31.03.1993 decreed the suit in favour of the plaintiffs on their depositing of Rs.1,23,526/- as sale consideration besides Rs.16,626/- (1/5 pre-emption zarepanjam) which was already deposited by the plaintiffs. It was further directed that if the said amount is not deposited within RSA No. 525 of 1994 -3- one month from the date of judgment i.e. 31.03.1993, the suit shall stand dismissed with costs. The vendees preferred their first appeal under Section 96 of the Code of Civil Procedure 1908 (for short 'CPC) in which he had basically raised two arguments. Firstly, that the plaintiffs are not co-sharers in the land in question because vendeees-plaintiffs had purchased a specific khasra number out of joint khewat and secondly, that after the preparation of Naksha B, the status of the plaintiffs as co-sharers was over to claim superior rights of pre-emption. Both the arguments raised by the arguing counsel were rejected by the learned court below. The present appeal came up for hearing on 16.03.1994 in which the following order was passed: - “The learned counsel for the appellants submits that there is a conflict between the two full judgments of this Court, reported as Lachhman Singh Vs. Pritam Chand and another, 1970 P.L.R. 341 and Bhartu Vs. Ram Sarup, 1981 P.L.J. 204, on the point as to whether the purchaser of a specific khasra number(s) out of joint land becomes a co-sharer in the joint land. He has brought to my notice a refrence order, dated 16th November, 1993 in R.S.A. No. 1910 of 1993 where my Lord V.K. Jhanji, J. referred the matter to a still larger Bench. I have perused Bhartu's case (supra) in which the earlier Full Bench judgment in Lachhman Singh's case (supra) was considered and distinguished. In the fitness of things I deem it appropriate that this case may be placed before the same Hon'ble Judge, V.K. Jhanji, J. on 18th March, 1994, after taking appropriate orders from my Lord the Chief Justice, if necessary.” RSA No. 525 of 1994 -4- Thereafter on 23.03.1994, the dispossession of the appellants was ordered to be stayed. The appeal was ultimately admitted on 12.05.1994 with the following order: - “Admitted. The amount which the respondents had deposited with the Executing Court, in pursuance to the decree of the trial court, may be allowed to be withdrawn. Such withdrawal shall be without prejudice to the rights of the respondents in the appeal.” Learned counsel for the appellant has raised the same arguments that since the plaintiffs-defendants have purchased land of specific khasra numbers, out of the joint khewat, therefore, they could not be considered a co- sharer with him. In this regard, it would now be worthwhile to mention that there is no more conflict between the two judgments of this Court, reported as Lachhman Singh Vs. Pritam Chand and another, 1970 P.L.R. 341 and Bhartu Vs. Ram Sarup, 1981 P.L.J. 204 because in the latest decision of the Full Bench of the strength of Hon'ble five judges in the case of Ram Chander Vs. Bhim Singh and others 2008 (3) RCR (Civil) 685 it has been held that view taken in Bhartu's case (supra) is correct. It is also pointed out that in the case of Jai Singh Vs. Gurmej Singh, (SC) 2009(1) R.C.R. (Civil) 874, the Supreme Court has held that in case of sale of specific portion of land by one of the co-owners out of joint khewat, the other co-owner has a right to pre-empt the sale under Section 15(1) (b) of the Punjab Pre-emption Act 1913. In so far as second arguments is concerned, the status of co-sharers does not come to an end with preparation of Naksha B but after the instrument of partition is prepared. In this regard the learned counsel for the respondent has relied upon a judgment of this Court in RSA No. 316 of 1994 in case titled as Mehar Singh and Others Vs. Ajmer Singh RSA No. 525 of 1994 -5- and others, in which the Court relying upon the judgment reported as Pritam Singh Vs. Jaskaur Singh, 1992 PLJ 435, has held that as per under Sections 111 to 123 of the Punjab Land Revenue Act, 1887, in the absence of instrument of partition, there can be no severance of status of co-sharer. No other point has been raised, thus there is no question of interference in the instant appeal and hence, this present appeal is dismissed with costs. April 26, 2010 (RAKESH KUMAR JAIN) naresh.k JUDGE