4 33 V 1 1 1 4 1 i ReguIar SecondAppealNo 2467 of 1993 m1 A4 IN THE HIGH COURT OF PUNJAB c HARYANA AT CHANDIGARH RegularSecondAppealNoe2467of 1993 Date ofdecision 04092009 1t1 1 Satbir 2 Ram Pha43 R Singh sons ofMaujiRam slo Phul Singhall 0 rsloLadrawanTehsil District Rohtak 0 eee C5 Versus Z r Smt Barfo dlo Ram KaransloJas Karanrlo villageLadrawan Tehsil District Rohtak lr eee otj rlO CORAM HONBLE MR JUSTICE SHAM StER e 1 3 Z Present Mr ICS Dhaliwal Advocate 0 for the Mr HS Hooda Senior Advocate with Mr SinghAdvocate for the ShamSunder Je This RegularSecond Appeal1S directedagainst thejudgmentand decree ated 20101993 rendered by the Court of Additional District JudgeRohtak vide which it Parkash Om 2013.06.26 10: 52 True Scannend Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 4 34 r A t 0f1993 cll 2 acceptedthe appealagainstthe and decreedated 29041992renderedbythe Courtof Additional Senior Sub Judge and decreedthe suit of theplaintiff 1 for prenption 0 2 C are thatvidesaIe deed dated28e121988 C3 nos 4 to 7 sold the land P 17 marlas out ofkhasra no432 khatano295 and Khewat 1111Il Z lllln situated111villageLandranto nos l to 2 fOr a sale of r Smt Barfoplaintiffl thatshe being a coharer ln thesuit land had cll 1 a rightof Q0 She thesale to her the sale as had taken placefor Z a of Rs50001 On the 8na1re61salof llOs l to 31 appellants to the letl With no a suit 3 nos 1 to 31 appellants put appearance 111 and contestedthe suit byWay of tlling Writtenstatement a joint Whereinit was statedthat Zile Singh the sole WS OWnerof the P04 Which SinghIshare came to his Zile ln a familysettlementOut of the 17162 share plot S Sold to th for a sale Parkash Om 2013.06.26 10: 52 True Scannend Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 4 35 1 Regular SecondAppealNo 2467 of 1993 3m considerationof Rs50001m It was 61rtherstatedthat the plaintiffl had no right as she was not a cosharer in theplot The remaining averments containedin theplaintwere denied beingwrong lr 4 From thepleadings of the partiesthe following 0 C issues were framedbythetrial Court C5 l Whether the plaintiffhas superiorightof pree I emption to the suit land90PP Z 2 What was themarketvalue ofthe suit land 20PP 3 Ifissue no2 is not provedwhat was the market I value ofthe suit land at thetimeofsale 20PP r5 rn 4 Whether the amount was flxed and paidin good 1 1 W2 Z faith 20PP Il 11 5 Relief 5e The partiesled evidencein supportof their case The trial Court afler hearingthe Counsel for the parties and on goingthrough the evidence and record of the case dismissedthe suit holding that at thetime ofsale Smt Barfo plaintiff was not a coesharer in the propertyin disputeand as such hadgot no superiorrighttoprenpt the sale P Parkash Om 2013.06.26 10: 52 True Scannend Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 4 36 Sl r 1 J 41 0f1993 1 4 4e 6 Feeling an appeal was bythe whichwas bytheCourt of District Judge vide its and 1 dated20101993 r the instant Regular 7e Feeling 0 by the C SecondAppeal was filed I nosl to 3 C5 I The instant appealwas allowed vide 8 Z and decreedated11092000by this Court holding a that 111view of the Section15introduced by the r AmendmentAct1995 111theparentAct ie The 08 Punjab Act as to theStateof Haryana QO of a comsharer to a sale had been taken the 1 V Z and as such the plaintiff was not entied to pree awa Il tl emptthe same Civil AppealNoA948 of 9 2001was filed bySmt Barfo plaintiffl in the Apex which set aside the and decree dated 11092000of this Courtand remandedback the appealfor fresh decision that the amendingAct had only effect Parkash Om 2013.06.26 10: 52 True Scannend Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 437 404 7 J S RegularSecondAppealNo 24670f1993 e a 10 This is how this appealhas come up for beforethisCourt 11 I haveheardtheCounselfor the partiesand 1m have gone throughthe evidence and record of the case 0 C 12 The substantialquestionoflaw C5 anses in thisappeal Whether the first AppellateCourt recorded Z perverse finding on account of miseading and nappreciation of evidence that SmtBarf until thepassingof thedecreeand in dispute as suchhad 13 The Counselfor the 08 appellantssubmitted oo that the trial Court 1 was rightlll holdingthat Smt Barfo 7Z was not a cosharer in the proper e 111 dispute at the timeof sale filing ofthe 1 decree as the same had already beenpartitioned He 8irther submittedthatthe first Appellate Court was Wrongin coming to theconclusion was proved and as such Smt Barfo sale as also the passingof the decree and as such had a supenorrightto prempt the sale He 81rthersubmitted that the and decreeof the flrst AppellateCourt being Parkash Om 2013.06.26 10: 52 True Scannend Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 4 38 9P 1 0f1993 6 basedon nreadingand of evidencewere 14 1 On the other hand the Counselfor the respondent thatthe tlrst Court 0 of evidence on correct 1 and thereof 1 conclusion came to the thatSmt 0 disput at thetimeof sale filingofthe sultand 07 decreeHe irther that the 9 recordedbythe 2 irther that He ln ShvmnSunderand others Kunw Ve Ram 0l1 anothere200181RCR 754 a r0 oftheApex 4 7 thepartiesto the on thedateof of the SUlt He decreeofthe thatthe and valid Were 15 AAer therival to raised bytheCounsel for my theparties 111 theappeal1S liableto thereasonsto for It ls settled of laW that this Court in RegularSecondAppea cannot Parkash Om 2013.06.26 10: 52 True Scannend Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 4 39 r e Regular SecondAppealNoe2467 of 1993 J 7m V interferewith the ftndings of fact recordedby the first Appellate Court even if the same are grosslyerroneousuntil andunless it comes to the conclusion that the same are the 1 resultof and of evidenceor non r r considerationof the materialpieceof evidence It is evident 0 3 from Ex 2 for theyear 198485that theplaintiff 0 was recordedas a coesharerin the propertyin disputeThe I suit was flled in December 1989 The partition 4 1 2 were initiated before the Assistant Collector Ist Grade in 1 rA respect of certainland which includedthe khasranumberin 1 r dispute also The Assistant Collector Ist Grade orderedthe 08 partitionvide his order dated1308991 It is furtherevident 00 1 from the documentsExlOl D2 nd D31A that the sanad 7 2 1 takseem naqshabai and naqsha3eem were Clm Exl04 the order dated 13081991 passedbythe Assistant Collector showed that thepartition were initiated Oll 06031990 ie afler the filingofthe suit The order dated 13081991 passedby the Assistant Collector Ist Grade was challenged bef70rethe Collector who vide his orderExP31dated09Jl992 set aside the same The case was remandedto the Assistant Collector First Grade for 81rther A second appealagainstthe order dated Parkash Om 2013.06.26 10: 52 True Scannend Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 4 40 4 61 1 6 1 RegularSecondAppealNoe2467of 1993 8 1 e 091992 was preferred beforethe CommissionerRohtak Division Rohtak who stayedthe operationof the appellate order of the Collectorvide his orderdated26021992 copy 1 whereofis ExDX Thesuit was decidedbythetrial Court on 29041992 The 0 Rohtak Division vide his C3 order dated 091 11992 dismissedthe second appealand C5 upheldthe appellateOrder of the Collector In theseCircumstancesthepartition of the suit land Z orderedby the AssistantCollector Ist Grade were no more in vogue TheUial Courttookintoconsideration the factum that since the appellateorder of the Collector oll setting aside theorder of theAssistantCollectorIst Grade had r0 1 been stayedby the 7 RohtakDivision Rohtak Z and Smt Barfo plaintiftPWlI admitted during thecourseof crossvexaminationthat her father and MaujiRam fatherof defendant nos 1 to 3had alreadypartitionedtheir land and conclusionthat she Smt Barfo9was not a cosharer in the propertyin disputeIt maybestatedhere thatthe mere stayof operationof the orderof the Collectorbythe did not mean that the partition rnade by the Assistant Collector stood revived Ifthe fathersofthe partiesbymutual Parkash Om 2013.06.26 10: 52 True Scannend Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 441 ft Il 0f1993 4 consent put them in possessionof differentportionsof the property thatdid not amount to partitionby metes and boundsThat arrangement 1 t 111 Satbir Singh of the defendantswhen 0 one t C appeared as DW did not state even a singleword that any 0 oral partitiontook placeamongstthe partiesduring the life I timeoftheir fathersAs statedabove the appellate Z Order passed by the Collector was upheld by the 2 Rohtak Division vide order I dated 09111992 meaning thereb that the partition c5 initiatedln the Court of Assistant r CollectorIst Grade came to an end From the 7 evidenceon recor it was Z not provedthatthere was a partitionof thepropertyin dispute the otherpropertyby metes and boundsIn this Vlew of the matter the flrst Appellate Court was right tn holding that the plaintiffcontinued to be a coesharerat the timeof saleeat thetimeof fllingthe suite and at the timeof 1 right ofsale 16 The Apex Court in Shvam Sunder and othersscasupral observed as underl Parkash Om 2013.06.26 10: 52 True Scannend Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 442 re P r SecondAppealNoe 24670f1993 1 10m r The Court has no but to grantdecreeof wherethereis a saleof a propertyby another comsharerAnd for thatreason theCourts 1 have tan theview that where there 0 is a saleof holding or propertybya coasharerthe 0 C rightof is to be settledat Z C5 theearliesteitheron thepreeemptors proving his to preempt on the dateof the sale on e 23 the dateof tIlingof suit and on the date of the 1r decreeof the Court of first instanceor thevendee rS 4t his status till the of the Z 05 suit for and afler of the 00 1 4 suitany lossof bythepreeemptor or mm 2 vendeeimprovinghis status equalor aboveto 0 1 CL right is ofno consequence 57 Theprinciple of lawlaid down in ShvamSunder and othes casesuprais fully to thefactsofthe lnstant case asthe her to preeempton the date ofsale on the dateofftlingofsuit and on the dateofdecreeof the first instance The submissionof the Counsel for the beingwithout merit is rejected Parkash Om 2013.06.26 10: 52 True Scannend Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 443 1 b r RegularSecondAppealNoe 2467 of 1993 11 9r 16 The flndings of fact recordedby the first Appellate Court on the aforesaidpointsbeingbased on the correctreadingand due of evidenceand law On m the point do not suffer from any illegality or perversi 0 the interferenceof thisCourt and are liable to be 0 C upheldThe substantial of law depicted above 1S C5 answeredagainstthe 18 For the reasons recordedabove the instant 4 22 Regular SecondAppealbeingdevoid of merit must fail and r the same is dismissedwith costs r t 14411 cti Sham Sunder l 00 04 2009 Judge 4 dinesh 2 P2 a C3 5 P C Parkash Om 2013.06.26 10: 52 True Scannend Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document