R.S.A.No. 2109 of 1998 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 2109 of 1998 Date of decision: 24.8. 2009 Sandeep Bansal ......Appellant Versus M.L.Hans and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Arun Jain, Sr.Advocate with Mr.S.K.Sharma, Advocate, for the appellant. Mr.S.C.Kapoor, Sr.Advocate with Mr.M.L.Hans, Advocate, for the respondents. **** SABINA, J. Plaintiff Manohar Lal Hans filed a suit for pre-empting the sale which was dismissed by the Civil Judge (Jr.Divn.) Hisar vide judgment and decree dated 4.10.1997. In appeal, the said judgment and decree were set aside by the Additional District Judge, Hisar vide judgment and decree dated 12.6.1998. Hence, the present appeal by the defendant. R.S.A.No. 2109 of 1998 2 Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 to 7 of its judgment, are as under:- “2. Briefly, case of the plaintiff/ appellant is that he has been the tenant, on the ground floor of the suit property continuously, since May, 1965. Sh.A.D.Nangia, original owner of the suit property, resident of New Delhi, sold it to the original vendees/defendants namely Prem Vir and others, vide impugned registered sale deed dated 20.2.1992 (Ex.P-1), for ostensible sale consideration of Rs.1,50,000/- without any notice to him, in clandestine manner. Real sale price was only Rs.1,00,000/- but in order to ward off pre-emption, excessive amount of Rs. 1,50,000/- was mentioned therein. 3. It is pleaded that Hisar Town was founded historically by Feroz Shah Tuglak in the 14th Centuary (1354 AD) under its initial name of Hisar Feroza (Fort of Feroz). This name later on, with passes of time, contracted into 'Hisar'. Being founded by Mohammaden, ruler custom of pre-emption was prevalent in Hisar Town, even before the commencement of Punjab Pre-emption Act, 1913. Initially being a fort city (walled city) Hisar Town extended within its four gates. The Town then gradually expanded outside the walled city into its population in outer Mohalla Sanian, Mohalla Dogran, R.S.A.No. 2109 of 1998 3 Mohalla Kumharan various colonies also gradually came up into existence as extension of Hisar Town. Hisar Town mainly grew and expanded alongwith Hisar- Sirsa-Delhi Road, now known as National High Way No.10, which passes through the town. Residential localities like Het Ram Colony also came up along with its. All these are within Municipal Limits of Hisar Town. 4. Custom of Pre-emption existed in the Hisar Town at the time of commencement of Pujab Pre- emption Act, 1913, so in the expanded and the extended area of the Town, including of Het Ram Colony, being part and parcel of Hisar Town, the said custom of pre-emption would deemed to exist. Abandonment of the custom has never been proved or established. Number of Judicial pronouncements also prove the existence of custom of pre-emption, the plaintiff being tenant in the suit property, has thus superior right to pre-empt the sale; hence this suit. 5. During the pendency of the suit, the original defendant/vendees namely Prem Vir and others, sold the suit property to present defendant Sandeep Bansal, vide sale deed dated 21.10.1993 (Ex.P-11), specifically mentioning therein, the fact of pendency of this suit of pre-emption. The said original defendant/vendees had R.S.A.No. 2109 of 1998 4 opted not to contest the suit, they were duly proceeded ex parte. The case was then fixed for recording ex parte evidence of the plaintiff, when an application was filed by Sandeep Bansal/subsequent vendee, for being impleaded as party. The application was allowed by the trial Court on 13.1.1994. Plaintiff/appellant went before the Hon'ble High Court in civil revision No.1659 of 1994 challenging the impleading of Sandeep Bansal. Learned counsel of Sandeep Bansal in the High Court, in the presence of Sandeep Bansal, gave statement to the High Court that by virtue of that order impleading Sandeep Bansal as respondent/defendant as party to the suit Sandeep Bansal would not claim any better right, then his vendor's rights, legally had or may have in the suit. The revision petition was accordingly dismissed by the Hon'ble High Court, subject to that statement clarifying that the suit was only against the original vendees. 6. Trial Court vide its order dated 16.8.1994 allowed Sandeep Bansal to file his written statement. This order was again challenged by the plaintiff/appellant in the Hon'ble High Court in civil revision No.700 of 1994, but the revision was dismissed in limini. R.S.A.No. 2109 of 1998 5 7. Sandeep Bansal, in his written statement, has contested the suit, denying the existence of custom of pre-emption in Hisar Town. But it is admitted that plaintiff/appellant has been a tenant in the suit property on its ground floor. It is also pleaded that Het Ram Colony and others nearby colonies, outside fort walled Hisar City are sub divisions of urban area of Hisar. Hisar Municipal Committee has also divided the urban area into 33 wards and each ward is a separate sub division and that there was no custom of pre-emption before the commencement of Punjab Pre-emption Act, 1913. It is also pleaded that Sandeep Bansal himself is the tenant on the first floor along with his father, being member of Joint Hindu family with his father, so plaintiff/appellant has no superior right of pre-emption. It is further pleaded that sale consideration of Rupees 1,50,000/- was bonafidely fixed and actually paid. It is further pleaded that bargain was offer to the plaintiff/appellant, but he did not agree to the purchase, as he wanted 40% price of the portion under his tenancy. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff has a superior right to R.S.A.No. 2109 of 1998 6 pre-empt the sale in question U/S 16 of Punjab Pre- emption Act, 1913 as prayed for? OPP 2. Whether there exist a customery right of pre- emption in the Hisar Town qua the disputed property? OPP 3. Whether the plaintiff is tenant in question of the disputed property before the sale in question, at the time of sale in question and at the time of filing of suit? OPP 4. Whether the actual sale consideration of the sale in question was Rs.1,50,000/-? If so its effect? OPD 5. Whether the suit is not maintainable in view of the provisions of Section 25 f the Pre-emption Act? OPD 6. Relief. ” The substantial question of law that arises in this case is as to whether the custom of pre-emption prevails in the locality in which the property in dispute is situated i.e. in the extended area of Hisar city. Section 7 of the Punjab Pre-emption Act, 1913 reads as under:- “Exists under certain conditions in urban immovable property: Subject to the provisions of Section 5 (a) right of pre-emption shall exist in respect of urban immovable property in any town or sub-division of a town, when a R.S.A.No. 2109 of 1998 7 custom of pre-emption is proved to have been in existence in such town or sub-division at the time of commencement of this Act and not otherwise.” Learned senior counsel for the appellant has argued that the plaintiff was required to establish that there was a custom in existence prior to the commencement of the Punjab Pre-emption Act, 1913 with regard to the pre-emption of urban property. The Hisar town initially was in a walled city. Thereafter, the town expanded and the property in dispute was situated outside the walled city. Although there was a custom in the walled city of pre-emption but the same cannot be presumed to be existing in the extended town outside the walled city. In support of his arguments, learned senior counsel has placed reliance on the Imperial oil, soap and General Mills Co. Ltd. Delhi v. M. Misbah-ud-din and others 1921 Lahore (Vol. II) page 83 wherein it was held as under:- “Now, it is true that the custom of pre-emption has been held to prevail generally throughout the City of Delhi, but that applies only to the City proper as circumscribed by the City walls constructed during the Moghul, period, and has no application to a suburb which has grown up since the British Rule. We, therefore, are of opinion that it is for the plaintiff to adduce satisfactory evidence to show that the custom of pre-emption prevails in this particular sub- division, which, as pointed out above, is situated outside R.S.A.No. 2109 of 1998 8 the city walls, and cannot be treated as a part of the city proper for the purpose of the custom of pre-emption.” Learned senior counsel for the appellant has further placed reliance on Gopal Singh and another v. Mool Raj and others, ILR 1924 Lahore Series (Vol.V) page 312, wherein it was held as under:- “The next question is whether the custom of pre-emption has been proved to exist in the locality in which the land is situate. The land is in a business quarter of recent growth which lies outside the walls of the town of Gujranwala. No instance has been given of the existence of a custom of pre-emption in that quarter, and evidence of its existence in certain parts of the old town is not sufficient to show that the custom exists also in the particular quarter in which the land in dispute is situate. It cannot be said that the custom exists throughout the town because in a judgment given on page 18 of the printed paper book it was held by the Chief Court that the custom alleged to exist in regard to certain non-agricultural land at Gujranwala was not proved. But even if the custom does exist generally in the old town it cannot on that account be presumed to exist in an outgrowth or extension of the town, and in this connection Kishan Dial Ali Bakhsh (1), Umar Bakhsh vs. Abdul Karim (2), and R.S.A.No. 2109 of 1998 9 Allah Ditta v. Muhammad Nazir (3) are cases in point. Learned senior counsel has next placed reliance on Ram Lal v. Municipal Committee, Bhera AIR (34) 1947 Lahore 386, wherein it was held that although a custom of pre-emption prevailed generally in the old town of Bhera, that custom could not be extended for the purpose of pre-empting a sale of a property consisting of a building situated outside the old abadi which till then was agricultural land. It was further held that the observations made by the learned Single Judge in Miran Bakhsh v. Mohammad Akram Khan AIR 1937 Lahore 167, to the effect that as to the position of the extensions of towns in the old abadi whereof custom of pre-emption has been found generally to prevail could not be accepted as a correct statement of the law. Learned senior counsel for the respondents, on the other hand has argued that the learned Additional District Judge had rightly allowed the appeal of the respondent by relying upon a decision of the Division Bench in Basheshar Nath and others v. Alla Diya and others AIR (38) 1951 Punjab 90 (2), wherein it was held that custom of pre-emption prevailed in Kothi Shora, which was nothing but an extended part of Subzi Mandi. Learned senior counsel for the respondents next placed reliance on Miran Bakhsh v. Mohammad Akram Khan AIR 1937 Lahore 167, wherein it was held that custom of pre-emption prevailing in a particular town would be enforceable in the extended R.S.A.No. 2109 of 1998 10 boundaries of the original town where the custom prevailed. In the present case, plaintiff-respondent Manohar Lal Hans had filed a suit to pre-empt the sale deed executed by original owner to Prem Vir vide sale deed dated 20.2.1992, who further sold the same to the defendant vide sale deed dated 21.10.1993. Admittedly the plaintiff was a tenant in the suit property on the ground floor. The situation and location of Het Ram Colony, Hisar and the suit property situated therein i.e. outside the fort walled city of Hisar is also not in dispute. The said fact is duly established from the site plan Ex.D-1 placed on record. Admittedly, Het Ram Colony is within the municipal limits of Hisar town and is thus an extension and expansion of Hisar town. It has also not been disputed during the course of arguments that in the walled city of Hisar, custom of pre-emption existed. Now the only question that requires consideration is as to whether the said custom of pre- emption would also be applicable to the extended city. The question involved in this case is no longer res integra. While dealing with exactly a similar proposition, it has been held by a Division Bench in Imperial oil's case (supra) that the custom prevailing in the walled city had no application to a suburb which has grown up outside the city walls since the British Rule. Similarly it was held in Gopal Singh's case (supra) by a Division Bench that where the custom existed in the old town it could not be presumed that the custom R.S.A.No. 2109 of 1998 11 existed in an outgrowth or extension of the town. The judgments relied upon by the learned Additional District Judge are not applicable to the facts of the present case. In Basheshar Nath's case (supra) kothi shora was extended part of Subzi Mandi in Delhi where the custom of pre-emption prevailed and hence, it was held that it would apply to the extended part of Subzi Mandi. Similarly the judgment passed by the learned Single Judge in Miran Bakhsh's case (Supra) is also not applicable to the facts of the present case and moreover the judgments passed in Imperial oil's case (supra) and Gopal Singh's case (supra) were not noticed by the learned Single Judge. Rather the present case is fully covered by the decisions rendered in Imperial oil's case (supra) and Gopal Singh's case (supra). In the absence of any evidence to the effect that the custom of pre-emption was also prevalent in the Het Ram colony, which was outside the walled city of Hisar, it could not be said that the custom of pre-emption which was prevalent in the walled city of Hisar was ipso facto prevalent in the colony outside the walled city. Learned Additional District Judge had thus erred in decreeing the suit of the plaintiff. Substantial question of law stands answered accordingly to the effect that the custom of pre-emption was not prevalent in the property in dispute, which was outside the walled city of Hisar where the custom of pre-emption was prevalent. Accordingly, this appeal is allowed. The impugned R.S.A.No. 2109 of 1998 12 judgment and decree passed by the lower Appellate Court are set aside and consequently, suit of the plaintiff is dismissed. (SABINA) JUDGE August 24, 2009 anita