RSA No. 151 of 1986 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: 10.7.2009 (i) RSA No. 151 of 1986. Teka ......Appellant Versus Raj Singh .......Respondent (ii) RSA No. 152 of 1986. Teka ......Appellant Versus Shri Krishan .......Respondent CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Shri S.C. Sibal, Senior Advocate, with Shri V.S. Rana, Advocate, for the appellant. Shri Amit Aggarwal, Advocate, for the respondent. HEMANT GUPTA, J. (Oral). This order shall dispose of RSA No.151 of 1986 arising out of a suit for possession by pre-emption in respect of the registered sale deed dated 14.12.1982 and RSA No. 152 of 1986 arising out of a suit for RSA No. 151 of 1986 (2) possession by pre-emption in respect of the registered sale deed dated 17.11.1982. However, for facility of reference, facts are taken from RSA No. 151 of 1986. Smt. Kapoori, Pran and Imrat, executed above said sale deeds in respect of their ½ share each. The plaintiff claimed a superior right to pre-empt the said sale on the ground that he is a co-share in the khewat and Khatas in which suit land is comprised. In the written statement, the defendant denied that the plaintiff is co-sharer in the suit land. In evidence, the defendant relied upon documents Exhibits D.3, a judgment delivered by the Additional District Judge, Gurgaon, on the basis of compromise. The compromise is Exhibit D4/1. Exhibit D4 is the copy of the decree sheet. It transpires from the record that earlier the vendor of the plaintiff obtained proprietary rights being occupancy tenant from the Court of Assistant Collector, Ist Grade, Gurgaon, vide order dated 31.3.1976. All the proprietors were allegedly not impleaded as respondents in the aforesaid proceedings. Therefore, the proprietors, who were not impleaded, filed a suit challenging the order of Assistant Collector. Vide judgment Exhibit D.3, appeal filed by the vendor was settled on the basis of compromise as the suit was filed in the representative capacity by inviting objections by public notice. As per the compromise, 10 bighas of the disputed land was to remain in ownership and possession of the vendor of the plaintiff. The said 10 bighas comprise of the land, which is subject matter of sale. It was thus held that all the vendors were exclusive owners of the land in dispute. The appellant has challenged the judgment and decree passed by the Courts below, seeking a substantial questions of law to the effect that RSA No. 151 of 1986 (3) `whether a co-sharer can in law pre-empt the sale in a joint khewat of which partition has not taken place as per the provisions of the Punjab Land Revenue Act, 1887?' and `Whether a fractional sale by a co-sharer would amount to partition of the property in accordance with the provisions of the Land Revenue Act, 1887? However, none of the substantial questions of law as sought to be raised by the plaintiff, arises for consideration in the present appeal. The Punjab Pre-emption Act, 1913, as applicable in the State of Haryana, was amended vide Haryana Act No. 10 of 1995. By such amendment right of a co-sharer to seek pre-emption of the land was taken away. The provisions of Haryana Act No. 10 of 1995 were considered by the Hon'ble Supreme Court in Shyam Sunder v. Ram Kumar, AIR 2001 SC 2472, wherein an argument was raised that the suits already pending to seek pre- emption, being a co-sharer, are not affected by the said amendment. It was held by the Hon'ble Supreme Court to the following effect:- “11. An analysis of the aforesaid decisions referred to in first category of decisions, the legal principles that emerge are these:- 1. The pre-emptor must have the right to pre-empt on the date of sale, on the date of filing of the suit and on the date of passing of the decree by the Court of the first instance only. 2. The pre-emptor who claims the right to pre-empt the sale on the date of the sale must prove that such right continued to subsist till the passing of the decree of the first Court. If the claimant loses that right or a vendee improves his right equal or above the right of the claimant before the adjudication of suit the suit for pre-emption must fail. 3. A pre-emptor who has a right to pre-empt a sale RSA No. 151 of 1986 (4) on the date of institution of the suit and on the date of passing of decree, the loss of such right subsequent to the decree of the first Court would not affect his right or maintainability of the suit for pre-emption. 4. A pre-emptor who after proving his right on the date of sale, on the date of filing the suit and on the date of passing of the decree by the first Court, has obtained a decree for pre-emption by the Court of first instance, such right cannot be taken away by subsequent legislation during pendency of the appeal filed against the decree unless such legislation has retrospective operation.” Both the Courts have recorded a concurrent finding of fact that the vendors were exclusive owners of the suit property on the date of sale. Such finding has been recorded in view of the compromise arrived at before the Civil Court. The documents of such compromise are Exhibits D.3, D.4 and D4/1. Therefore, on the date of decree of the trial Court, the plaintiff had no right to pre-empt the sale as the vendors were in exclusive possession of the same as owners. The arguments that such decree was not given effect to in the revenue record and, therefore, the partition of the land is not by metes and bounds, is not sustainable. It was held by this Court in Ajmer Singh v. Dharam Singh, 2006(2) RCR (Civil) 541, that it is not necessary that the partition is to be reflected in the revenue records. It was held to the following effect:- “18. In view of the above binding precedents, it is apparent that the revenue record by itself neither create or extinguish title. Since co-owners by mutual consent have entered into separate portions of land and are in the RSA No. 151 of 1986 (5) enjoyment of their respective portions, merely the said private partition has not been formally affirmed will not relegate the parties to pre-partition status. The role of the revenue officer in Section 123 of the Act is that of “affirmation” of partition. The said affirmation is subject to verification of the factum of partition only. The inquiry in terms of sub-section (2) of Section 123 of the Act is restricted to the effect to point out that, in fact, partition has been made. Therefore, non affirmation of partition by the revenue officer will not render a private partition redundant but such affirmation will only determine the rights of an owner in respect of their obligation to pay land revenue to the State in terms of the provisions of the Act. 19. It is open to any of the co-sharers to seek such affirmation who may apply to the revenue officer. There is no provision in the Act which entails any penal consequences of not recording such private partition in the revenue record. Thus, the affirmation of the revenue officer of the private partition in the revenue record is a directory provision. The purpose of such affirmation is only to determine the right of the State to recover land revenue and to keep its record update. Mere fact that such private partition has not been recorded in the revenue record will not render an act of the parties as totally redundant. It is well settled that entries in the revenue record do not determine, create or extinguish the title of any person. The revenue record is corroborative of the fact recorded in the revenue record as it is maintained in normal course of affairs of the State and carries presumption of truth. But failure to seek affirmation of private partition, if otherwise proved on record, cannot be negated only for the reason that the same has not got the affirmation from the revenue authorities.” RSA No. 151 of 1986 (6) In view of the above, the finding of fact that the vendor was the exclusive owner of the suit land, cannot be said to be suffering from any patent illegality or irregularity, which may give rise to any substantial question of law in the present second appeals. Hence, both the appeals are dismissed. (HEMANT GUPTA) JUDGE 10.7.2009 ds