RSA No.161 of 1984 -1- ****** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.161 of 1984 Decided on February 21, 2011. Tek Singh (dead) through his LRs and others --Appellants Vs. Partap Singh minor through his guardian Hazura Singh and others --Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr. Sarjit Singh, Senior Advocate, with Mr. Jagdev Singh, Advocate, for the appellants. Mr. P.S.Dhaliwal, Advocate, for respondent Nos.10 and 15. ***** Rakesh Kumar Jain, J, (ORAL) The substantial question of law raised by learned counsel for the appellants in this appeal is as to “whether the right of ownership would vest in the pre-emptor as soon as the pre-emption money is deposited in the Court in time or when the possession is taken?” The plaintiffs are in second appeal against the judgment and decree of the Courts below by which their suit for declaration that they are owners of half share in the land measuring 20 Kanals 13 Marlas, comprising in Killa Nos.140//15/2 (2-13), 16(8-0), 25(8-0) and 157//5/1 (2-0), situated in the area of village Talwandi Aklian, Tehsil and District Bathinda, now in District Mansa, has been dismissed. The case set up by the plaintiffs is that Ganga Ram and Chanda Singh of village Talwandi Aklian were the owners in equal share of land measuring 10 Bighas 02 Biaswas, comprised in Khasra Nos.2885(7-3) and 3976(2-19) from which the present Khasra Numbers have been carved out during the consolidation. It is alleged that Chanda Singh had sold his share in the land measuring 10 Bighas 02 Biswas to defendants of set No.2 which was pre-empted by Waryam Singh, RSA No.161 of 1984 -2- ****** father of the plaintiffs by way of Civil Suit No.136 dated 04.06.1969, which was decreed on 14.10.1971. Waryam Singh (father of the plaintiffs) thus became the owner of half share of the aforesaid property, but mutation was not sanctioned in his name and Chanda Singh was continued to be shown as the owner in the revenue record. After the death of Chanda Singh, mutation No.14352 was sanctioned wrongly in the name of Partap Singh at the back of the plaintiffs to the extent of half share of land measuring 20 Kanals 13 Marlas who, despite repeated requests, did not admit the plaintiffs to be the owners of the half share and to get the mutation No.14352 cancelled, which was sanctioned in his name, hence the present suit was filed. Defendant No.1 Partap Singh and defendant Nos.9 to 13, all minors through their Court guardian, contested the suit and filed their joint written statement. The other defendants, who were also served, did not choose to appear, therefore, they were proceeded against ex-parte. It was alleged that the predecessor-in-interest of the plaintiffs had not become owner of the suit land as the decree would have enured if possession of the suit land had been taken after paying the balance sale consideration. On the pleadings of the parties, the learned Trial Court framed the following issues: - “1. Whether the plaintiffs are the owners of ½ share of 20 Kanals 13 Marlas of the land?OPP. 2. Whether the suit land has been carved and in lieu of old Khasra Nos. given in Para No.2 of the plaint?OPP. 3. Whether the suit is within time?OPP. 4. Whether the plaint has not been amended according to the orders of this Court if so its effect?OPD. 5. Relief.” After considering both oral as well as documentary evidence, the learned Trial Court did not agree with the plaintiffs and dismissed their suit vide its judgment dated 06.10.1980, which led to the filing of first appeal under Section 96 of the Code of Civil Procedure, 1908 [for short “CPC”] which too met the same fate on 23.09.1983 only on the issue that predecessor-in-interest of the plaintiffs RSA No.161 of 1984 -3- ****** have not become the owner by virtue of the pre-emption decree as he has failed to take possession of the suit land. Rest of the issues were not touched by the learned First Appellate Court who had observed that “I, however, deem it needless to refer to the point as to whether the land in dispute was actually carved out in lieu of the previous land” Shri Sarjit Singh, learned senior counsel appearing on behalf of the appellants has submitted that as per Order 20 Rule 14 of CPC, the title in the suit property would accrue to the plaintiffs on the date of the payment of the decretal amount, as stipulated in the decree and it is an admitted fact that in pursuance of the pre-emption decree, the predecessor-in-interest of the plaintiffs had deposited the balance sale consideration in time. Learned counsel for the appellants has relied upon a decision of the Supreme Court in the case of Ram Singh and others Vs. Gainda Ram and others, AIR 1953 PUNJAB 163, a Division Bench judgment of this Court in the case of Harpal Singh Vs. The State of Punjab and others, 1970 Revenue Law Reporter 347 and a judgment of the Supreme Court in the case of Bhoop alleged S/o Sheo Vs. Matadin Bhardwaj S/o Lakmi Chand, AIR 1991 Supreme Court 373. On the contrary, learned counsel for the respondents has submitted that Khasra Numbers of the suit land carved out in lieu of old Khasra Numbers do not tally and even if it is presumed for the sake of arguments, though not admitted, that the right of ownership would accrue to the plaintiffs on depositing of decretal amount even then the plaintiffs would not succeed in the suit on other grounds which have not been decided by the First Appellate Court. I have heard both the learned counsel for the parties and perused the record with their able assistance. In order to appreciate the controversy between the parties, it would be relevant to refer to Order 20 Rule 14 of CPC, which reads as under: - “14. Decree in pre-emption suit. -- (1) Where the Court decrees a claim to pre-emption in respect of a particular sale of property and the purchase money has not been paid into Court, the decree shall -- (a) specify a day on or before which the purchase-money shall be so paid, and RSA No.161 of 1984 -4- ****** (b) direct that on payment into Court of such purchase-money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase-money and the costs (if any) are not so paid, the suit shall be dismissed with costs. (2) Where the Court has adjudicated upon rival claims to pre-emption, the decree shall direct, -- (a) if and in so far as the claims decreed are equal in degree, that the claim of each pre-emptor complying with the provisions of sub-rule (1) shall take effect in respect of a proportionate share of the property including any proportionate share in respect of which the claim of any pre-emptor failing to comply with the said provisions would, but for such default, have taken effect; and (b) if and in so far as the claims decreed are different in degree, that the clam of the inferior pre- emptor shall not take effect unless and until the superior pre-emptor has failed to comply with the said provisions.” It is not disputed that after decree of pre-emption, the entire sale consideration was deposited within the stipulated time, but the possession was not taken. Order 20 Rule 14 clearly provides that the title of pre-emptor to the pre-empted property shall be deemed to have accrued from the date of payment of the pre-emption amount and is also settled in the case of Ram Singh (supra) that the pre-emptor's title accrues to the pre-empted property from the date of deposit of decretal price. In Harpal Singh's case (supra), it was held that “it is patent that property vests in the vendee from the date and time of registration of the sale and it can be said, that on a decree of pre-emption being granted, the property by RSA No.161 of 1984 -5- ****** a legal fiction would vest in the pre-emptor and accrue to him only on the date of the decree or when he makes the requisite deposit in Court in compliance to the said decree. In such a sale property vests in the vendee from the date of registration and remains so for a considerable period of time till under the pre- emption decree he is divested either at the time of deposit made in Court or subsequently by actually being dispossessed of the property in suit”. So, the right to property would accrue either at the time of deposit of decretal amount in time in the Court or on delivery of possession. In the case of Bhoop alleged S/oSheo (supra), it was held by the Supreme Court that in pre-emption decree as soon as the amount of purchase money is deposited in Court by the decree-holder, the title to the pre-empted land accrues to the pre-emptor. In view of the well settled law, the question which has been framed by learned counsel for the appellants is found to be substantial and, thus, answered in his favour by holding that in a case where there is a pre-emption decree and the amount, as stipulated in the decree, has been deposited in the Court in time, the title of ownership would accrue to the pre-emptor then and there and would not depend upon the delivery of possession. Since no other question was decided by the learned First Appellate Court except for the aforesaid, the other questions, which have been raised by learned counsel for the respondents that whether the suit has been filed in respect of the same land which is acquired by the predecessor-in-interest of the plaintiffs by way of pre-emption decree, need to be adjudicated upon because the agitation of the learned counsel for the respondents is that after consolidation the Khasra Numbers of the suit land have been changed and the old Old Khasra Numbers do not tally with the new Khasra Numbers and the land for which the suit has been filed is not the same. In view of the above, the present appeal is allowed on question of law which has been answered in favour of the plaintiffs, but to decide the other questions involved in the suit, the matter is remanded back to the learned District Judge, Mansa. The parties, through their counsel, are directed to appear before the District Judge, Mansa on 14.03.2011. February 21, 2011 (Rakesh Kumar Jain) vinod* Judge RSA No.161 of 1984 -6- ******