Regular Second Appeal No.193 of 2009 [ 1 ] IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Regular Second Appeal No.193 of 2009(O&M) Decided on : May 19, 2009 Subhash ... Appellant VERSUS Anil Kumar and others ... Respondents CORAM : HON'BLE MR.JUSTICE A.N.JINDAL Present: Mr.S.C.Kapoor, Senior Advocate assisted by Mr.Harminderjeet Singh, Advocate for the appellant. A.N.JINDAL, J.- This Second Appeal filed by Subhash, plaintiff – appellant (hereinafter referred as the plaintiff) has arisen out of the judgment dated 19.11.2008 passed by District Judge, Sonepat, dismissing his appeal against the judgment and decree dated 28.2.2008 passed by Civil Judge (Senior Division), Sonepat, whereby, his suit for pre-emption was dismissed. Heard. Admittedly, Shyam Lal @ Shyama and Khem Chand @ Khima (defendants No.2 and 3, respectively) were owners of the land measuring 9 Kanals, situated in the revenue estate of village Mimarpur, Tehsil Gannaur, District Sonepat. They sold the said land with all rights, attached thereto, to Regular Second Appeal No.193 of 2009 [ 2 ] Anil Kumar (defendant No.1) for a consideration of Rs.1,80,000/- by way of registered sale-deed dated 20.1.2000. The plaintiff and defendant No.1 are brothers. The plaintiff was the attesting witness to the aforesaid sale-deed. However, while claiming the right of pre-emption, the plaintiff filed the present suit on the last day of limitation i.e. 19.1.2001 against the defendants, pleading that he was a tenant in possession of the aforesaid land on payment of 1/3rd of its produce, as `Batai', therefore, he had the preferential right to pre-empt the impugned sale. The vendee Anil Kumar being the stranger to the land was liable to acknowledge his right. The contesting defendant Anil Kumar, while admitting the ownership of defendants No.2 and 3 and also the execution of the sale-deed and passing of the consideration thereunder, submitted that he and the plaintiff are brothers, though both of them were in joint possession of the property, yet the revenue entry in the record was in the name of the plaintiff, being eldest in the family. He further submitted that the plaintiff actively participated in the execution of the document and has transferred the possession of the said land to him, thereby, waiving the right of pre-emption. Thereafter, he never paid any rent of the property to the owners. He was the attesting witness to the sale-deed. Consequently, he pleaded for dismissal of the suit. No substantial question of law arises in the case as the plaintiff and defendant Anil Kumar, were brothers and the former had waived his right for pre-emption while he being present at the time of sale, did not raise objection to the execution of the sale-deed in favour of defendant Anil Kumar. He himself was the attesting witness to the sale-deed and the Regular Second Appeal No.193 of 2009 [ 3 ] possession of the land covered by the sale-deed was also transferred to defendant No.1 on the day of sale. He never paid any rent (share of the crop) to the owners. The other factor regarding his reluctance to claim the rent is indicative from the fact that he filed this suit on the last day of limitation. Section 10 of the Punjab Pre-emption Act, 1913, as applicable to the State of Haryana, refers to the acts, which amount to waivers, relevant provisions of which, are reproduced as under:- “Section 10 sub-section V :- Attestation of sale-deed as witness and taking active part in registration. Sub-section VIII :- Plaintiff took active part in negotiations for sale, appeared at the mutation without objecting but sued at the last moment. Sub-section X :- When the property is purchased at the request of the pre-emptor. Sub-section XII :- Taking active part at the sale and collecting money for registration. Sub-section XIX :- Identification of vendor by pre-emptor before sub-Registrar at the time of sale and endorsement of Registrar to that effect. Attesting the sale-deed.” It has come in evidence of the plaintiff that he appeared as a attesting witness to the sale-deed. The admission itself is proof of the fact that he appeared before the Sub-Registrar and identified the vendor and vendee. It is also admitted that he did not raise any objection at the time of execution of sale-deed in favour of defendant No.1, his own brother. Regular Second Appeal No.193 of 2009 [ 4 ] Resultantly, I am of the view that no substantial question of law arises or needs to be settled in the same. Hence, the appeal is dismissed. ( A.N.JINDAL ) JUDGE May 19, 2009 `gian' To be Referred to Reporter - Yes/ No