RSA No.2371 of 2007 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2371 of 2007 (O&M) Date of decision: 19.3.2009 Jai Kishan ......Appellant Versus Balbir Singh and another ......Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Vikram Punia, Advocate for the appellant. Mr. Amit Jain, Advocate for respondent No.1. * * * Rakesh Kumar Garg, J. By this judgment, two identical appeals i.e. RSA No.2371 and 2377 of 2007 shall stand disposed of as identical question of law on similar facts is said to have arisen out of the impugned judgment and decrees of the Courts below. However, for the sake of convenience, necessary facts for disposal of these appeals have been culled out from RSA No.2371 of 2007. The appellant filed a suit for possession by way of pre- emption against the defendants in regard to the half share of the land measuring 24 kanals comprised in Khewat No.218, Khatoni No.273 to 275, rect. and killa Nos.19(16/1,16/2, 14,15) situated at village Halalpur, as per jamabandi for the year 1987-88. The case of the plaintiff, in brief, was that defendant No.2 Kitabo sold her share of the land detailed above along with all rights appurtenant thereto, for Rs.1,00,000/- vide registered sale deed dated 20.5.1992 to defendant No.1 but in order to defeat the possible right of pre- emption the vendee-defendant, in connivance with the vendor got a RSA No.2371 of 2007 (O&M) 2 fictitious sum of Rs.1,65,000/- incorporated in the sale deed as the sale price. No notice of the sale in question was ever served upon him. He being a co-sharer in the joint khewat of the suit land had got the superior right to pre-empt this sale as the defendant was a stranger. The latter was asked many times to concede his superior right of pre-emption over the suit land but he declined and hence, the suit. Upon notice, defendant No.1 appeared in Court and filed his written statement negating the allegations of the plaintiff. The superior right of the plaintiff to pre-empt this sale was also disputed. It was further pleaded that the transaction took place for Rs.1,65,000/- factually. It was also pleaded that he, besides the sale price, also incurred the stamp and registration charges . The defendant also took the additional plea that the land in dispute had since been partitioned and the plaintiff was no more a co-sharer in it. Dismissal of the suit was prayed. Defendant No.2 did not appear in the Court despite service and was proceeded against ex parte vide order dated 17.2.1993 passed by the then Senior Sub Judge, Sonepat. Replication to the written statement was filed controverting the pleas of the defendant and reasserting his stand. Both the parties led their respective evidence in support of their claim. The trial Court decreed the suit for possession on payment of Rs.1,87,625, less 1/5th pre-emption amount already deposited. Appeal filed by the defendant against the aforesaid judgment and decree was accepted by Sh. P.L. Goyal, the then Additional District Judge, Sonepat vide judgment and decree dated 1.3.1996 setting aside the decree of the trial Court. The plaintiff filed regular second appeal before this Court, which, by its order dated 7.2.2006 set aside the judgment and decree of RSA No.2371 of 2007 (O&M) 3 the Lower Appellate Court and remanded the case to the Lower Appellate Court for fresh decision on merits in accordance with law. After remand of the appeal, defendant No.1 (now the appellant) was allowed to lead additional evidence and he was permitted to produce on record copy of sale deed dated 20.5.1992 executed by Kitabo in favour of the appellant. The plaintiff-respondent was also allowed to lead additional evidence who produced copy of plaint Ex.RA, copy of judgment of the trial Court Ex.RB in suit titled as “Balbir Singh v. Jai Kishan and Masri” and copy of order Ex.RC passed by the Lower Appellate Court before remand. The Lower Appellate Court vide impugned judgment and decree dated 14.5.2007 affirmed the findings of the trial Court and dismissed the appeal. While dismissing the appeal, the Lower Appellate Court observed as under:- “After going through the pleadings of the parties, the copy of sale deed Ex.P2 and the facts of the above cited authorities, which are distinguishable, I do not find enough merit in the arguments of the counsel for the appellant/defendant No.1. What was sold by Kitabo through sale deed dated 20.5.1992, copy of which is Ex.P2, as 12 kanals of land out of her share in the land measuring 35 kanals 11 marlas comprised in Khewat No.218, Khatoni No.273 to 275 and 278 to 280 having a total area of 213 kanals 10 marlas. The vendor also mentioned in the sale deed that she had given actual physical possession of the land comprised in rectangle No.19, Killa No.6/1, 6/2, 14 and 15 at the spot. In the plaint, it was mentioned that vendor defendant No.2 Kitabo sold away 12 kanals of land i.e. one-half share of land comprised in Khewat No.218, Khata Nos.273, 274 RSA No.2371 of 2007 (O&M) 4 and 275, rectangle and Killa Nos.19/16/1 (4-0), 16/2 (4- 0), 14 (8-0) and 15 (8-0), total measuring 24 kanals out of 1/12th share of the total land in the Khewat. A perusal of mutation Ex.P3 reveals that Risalo was owner of 1/6th share of the total land measuring 213 kanals 10 marlas comprised in Khewat No.218 which was transferred by her through civil court decree dated 4.11.1989 in favour of her daughters Kitabo and Masri in equal shares. The share of Risalo in the total Khewat was 35 kanals 11 marlas, which was obtained by Kitabo and Masri in equal share i.e. about 17 kanals 15 marlas each. However, Kitabo as well as Masri sold only 12 kanals of land each out of their share through two different sale deeds. It was mentioned in the sale deed that Kitabo sold 12 kanals of land of her share in the total land measuring 213 kanals 10 marlas comprised in Khewat No.218. Balbir Singh plaintiff-respondent No.1 also filed suit for pre-emption in respect of that 12 kanals of land comprised in Khewat No.218. The area of Killa Nos. 6/1 and 6/2 is actually 4 kanals each but in the plaint those Khasra numbers were inadvertently typed as 16/1 and 16/2. The plaintiff also omitted to mention Khatoni Nos.278, 279, 280 in the plaint but that is hardly material when it was specifically mentioned that the land sold by Kitabo sought to be pre-empted by Balbir Singh was 12 kanals of land comprised in Khewat No.218. The number of the sale deed, the date of its registration and the sale consideration mentioned therein were also RSA No.2371 of 2007 (O&M) 5 incorporated in the plaint. So it can be safely gathered from a perusal of para 1 of the plaint that Balbir Singh plaintiff sought to pre-empt the sale of land made by Kitabo in favour of Jai Kishan defendant No.1 through registered sale deed dated 20.5.1992 and that land was comprised in Khewat No.218, the total area of which was 213 kanals 10 marlas. So the suit cannot be said to be bad for partial pre-emption when the total land sold by Kitabo through registered sale deed 20.5.1992 was sought to be pre-empted by Balbir Singh plaintiff. The observations made in the aforesaid authorities relied upon by the counsel for the appellant-defendant No.1 are not helpful to defendant No.1 in this case as the facts of the aforesaid cases are clearly distinguishable. In Ganga Singh v. Narinjan Singh, 1969 CLJ 177 (P&H), the property sold was agricultural land and Haveli whereas the suit for pre-emption was filed only in respect of land. A specific objection was also raised by the defendant in that suit that it was bad for partial pre- emption but still the plaintiff in that suit did not include Haveli in the plaint. So the suit was held to be bad for partial pre-emption for non-inclusion of Haveli in the plaint. In Manbodh Singh v. Brij Bhukhan and another, AIR 1931 Oudh 52, the sale was made of lands situated in two pattis. The plaintiff being a co-sharer in one patti filed a suit for pre-emption in respect of land of that patti though he had an equal right to pre-empt the sale of the land of other patti. So his suit was held to be bad RSA No.2371 of 2007 (O&M) 6 for partial pre-emption. But in the case in hand, the total land sold by Smt. Kitabo was 12 kanals through registered sale deed dated 20.5.1992 and that very land was sought to be pre-empted by Balbir Singh plaintiff. It was also mentioned that the sold land was comprised in Khewat No.218. If the plaintiff omitted to mention some of the Khatoni numbers forming part of Khewat No.218, it is immaterial when the total land sold by Kitabo was sought to be pre-empted and the details of that land are clear from the perusal of para 1 of the plaint. It is also immaterial that Khasra Nos.6/1 and 6/2 of rectangle No.19 were wrongly mentioned as Khasra Nos.16/1 and 16/2 in para 1 of the plaint when the area of these khasra numbers was correctly given. Even otherwise the plaintiff was to be substituted in place of defendant No.1 and when Kitabo defendant No.2 was herself not in exclusive possession of the land of Khasra No.19/6/1,6/2, 14 and 15, how could she give exclusive possession of the land to the vendee i.e. Defendant No.1. Still not satisfied, the defendant has filed the present appeal challenging the judgment and decrees of the Courts below on the following grounds: “(i) Because the plaintiff had filed the suit in respect of Khewat No.218, Khatoni No.273 to 275, rect. and killa Nos.19 (16/1, 16/2, 14 , 15) to pre-empt the sale deed dated 20.5.1992 which was executed in respect of Killa Nos.6/1 and 6/2 by the vendor. The plaintiff had omitted RSA No.2371 of 2007 (O&M) 7 to pre-empt the sale of killa Nos.19//6/1 and 6/2 but had filed the suit in respect of killa Nos.19//16/1 and 16/2 which were never sold by the vendor. In this way the pre-emptor had filed the suit for partial pre-emption and therefore, the suit was not entitled to be decreed and in fact was not even maintainable as the killa Nos. sold were not sought to be pre-empted by the plaintiff. Instead the plaintiff had claimed the right of pre-emption with respect of killa Nos.19//16/1 and 16/2 which were not included in the sale deed dated 20.5.1992. Therefore, the question of their pre-emption did not arise. (ii) Because the learned First Appellate Court has while dismissing the appeal, had suo motto facilitated the removal of the mistake made by th e plaintiff-respondent in describing the specific suit land by ordering the rectification and substitution of the specific killa Nos. in the decree sheet of the judgment passed by the trial Court without there being even an application seeking the correction on behalf of the plaintiff. (iii) Because the suit for possession by way of pre- emption could only be decreed on the basis of the specific killa Nos.described in the sale deed Ex.P2 and any departure from the same would render both the judgment and decrees as totally void and nonest. (iv) Because the plaintiff respondent had not sought correction of the decree of the trial Court nor had filed any cross appeal against the same because his suit had RSA No.2371 of 2007 (O&M) 8 been decreed qua the wrong kills Nos. but the learned First Appellate Court went out of its way to fill up the lacuna in the plaint, judgment and decree of the trial Court even without there being any application moved by the plaintiff to seek their correction. (v) Because the judgment and decrees passed by both the Courts below suffer from an inherent error of law which renders them totally beyond jurisdiction and void in the eyes of law. On the basis of the aforesaid grounds, learned counsel for the appellant has argued that the following substantial questions of law arise in this appeal: “1. Whether the First Appellate Court is legally competent to suo motto amend the decree of the trial Court without there being any application for amendment of the plaint or the prayer clause of the civil suit in a total and gross violation of Order 6 Rule 17 of the Code of Civil Procedure? 2. Whether the First Appellate Court was justified in ordering the actual killa numbers involved in the civil suit to be incorporated in its judgment and decree without there being even an application moved by the plaintiff- respondent? 3. Whether a suit for possession by way of pre- emption in respect of suit land can be decreed in respect of the killa numbers which were never sold by the vendor and by omission of some killa numbers which were actually sold by the vendor as per the sale deed? RSA No.2371 of 2007 (O&M) 9 4. Whether both the courts below ere justified in indulging in the sheer misreading of the documentary evidence resulting in a gross miscarriage of justice? Lastly the counsel for the defendant prayed that the appeal be accepted and the judgment and decrees of the Courts below be set aside and suit of the plaintiff-respondent be dismissed with costs. On the other hand, learned counsel for the plaintiff-respondent supported the findings of the Courts below and has prayed for dismissal of the appeal. I have heard learned counsel for the parties and perused the record. From the substantial questions of law as framed by the learned counsel for the appellant and the arguments raised in support of these questions of law, the only grievance of the appellant in this appeal seems to be that the Lower Appellate Court was not legally competent to order for incorporation of actual killa nos. involved in the civil suit without there being any application for amendment of the plaint or the prayer clause of the civil suit. In fact, the appellant has no where disputed the superior right of the plaintiff-respondent to pre-empt the sale in question being a co- sharer in the land. Faced with this situation, learned counsel for the appellant argued that Jai Kishan-defendant No.1 purchased the land of Kitabo defendant No.2 through registered sale deed dated 20.5.1992 and he also purchased the share of Masri in the same land through registered sale deed dated 17.6.1992. Therefore, in view of the provisions of Section 21-A of the Punjab Pre-emption Act, the appellant had improved the status and become a co-sharer in the suit land prior to the institution of the suit and as such, the right of the plaintiff-respondent to pre-empt the sale on the RSA No.2371 of 2007 (O&M) 10 ground of his being co-sharer in the khewat comprising the suit land cannot be said to be superior to the right of the appellant. However, the aforesaid argument of the learned counsel for the appellant is without any merit in view of the judgment of the Hon'ble Supreme Court in Prema through LRs v. Surat Singh and others 2003 (Supp.) LJR 804, wherein it was held as under: “A careful reading of this provision shows that if in a suit for pre-emption, claim is based or a plea taken is defendant on a right of pre-emption derived from the co- ownership of the agricultural land or other immovable property and title to such land or property is liable to be defeated by enforcement of a right of pre-emption with respect of it, the Court is directed not to decide the claim or plea until the period of limitation for the enforcement of such right of pre-emption, if any, instituted with respect to the land or property during the period has been finally decided. Section 28A of the Act is attracted to a case where a plaintiff seeks relief of pre-emption as also to a case where the improvement of status is pleaded in defence. If that be so, the fact that by virtue of the second sale, the appellant has acquired 1/8th share in the joint property would be of no consequence as the plea of improvement of status would not be available to him as the second sale itself is the subject matter of the second suit. The appellant has also assailed the maintainability of the suit on the ground that it was bad for partial pre-emption inasmuch as the land comprised in Khatoni No.278 to 280, which was also the subject matter of RSA No.2371 of 2007 (O&M) 11 sale, was not included in the plaint and the land comprised in killa Nos.6/1 and 6/2 of rectangle No.19, of which the possession was allegedly given at the spot by the vendor to the vendee, was not included and in its place, the land comprised in killa Nos.16/1 and 16/2 of rectangle No.19 was included which in fact does not form part of the sale deed. The argument of the learned counsel for the appellant is misconceived. What was sold by Kitabo though sale deed dated 20.5.1992, copy of which is Ex.P2, was 12 kanals of land out of her share in land measuring 35 kanals 11 marlas comprised in Khewat No.218, Khatoni No.273 to 275 and 278 to 280 having a total area of 213 kanals 10 marlas. The vendor also mentioned in the sale deed that she had given actual physical possession of the land comprised in rectangle No.19, Killa No.6/1, 6/2, 14 and 15 at the spot. In the plaint, it was mentioned that vendor defendant No.2 Kitabo sold away 12 kanals of land i.e. one-half share of land comprised in Khewat No.218, Khata Nos.273, 274 and 275, rectangle and killa Nos.19/16/1(4-0), 16/2(4-0), 14(8-0) and 15(8-0), total measuring 24 kanals out of 1/12th share of the total land in the Khewat. Thus, the total land sold by Kitabo was 12 kanals through registered sale deed dated 20.5.1992 and that very land was sought to be pre-empted by Balbir Singh-plaintiff. The argument of the learned counsel for the appellant that without any application for correction or amendment the Court itself could not make corrections of killa numbers in the impugned decree,is also without merit in view of the provisions of Order 41 Rule 33. The Appellate Court has wide powers to pass a decree, which ought to have been passed, even in the absence of any cross-objections or cross- appeal filed on behalf of other party. For the reasons recorded above, I find no merit in these appeals. RSA No.2371 of 2007 (O&M) 12 No substantial question of law arises. Dismissed. March 19, 2009 (RAKESH KUMAR GARG) ps JUDGE