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Gurnam Singh And Others v. Surjit Singh And Others
Factual and Procedural Background
The appellants (plaintiffs) had purchased, on 10 May 1955, certain shares in khewat 2 (khata 26-24) and 6 bighas 7 biswas in khewat 3 (khatas 49-54) totalling 213 bighas 14 biswas. On 16 April 1957 respondents 1-6 bought 926 bighas in the same khewats for Rs 43,600; the sale was registered on 19 March 1958. Claiming a right of pre-emption as co-sharers (and, alternatively, as biswadars) the appellants sued to pre-empt that sale.
The suit was decreed by the trial court on 4 January 1960 and affirmed by the District Court on 6 March 1961. In second appeal, however, the Punjab High Court reversed the concurrent findings, holding that the appellants had not proved the continued existence of co-sharer rights at the date of decree. The present appeal, brought to the Supreme Court by certificate, challenges that reversal.
Legal Issues Presented
- Whether the appellants retained a subsisting co-sharer interest in the very khewats (2 and 3) from which the impugned sale was made, so as to confer a superior right of pre-emption under Section 15(b) fourthly of the Punjab Pre-emption Act.
- Whether non-production of the registered sale deed by which the appellants had earlier alienated most of their holdings justified an adverse inference against them.
Arguments of the Parties
Appellants' Arguments
- They still owned 6 bighas 7 biswas in khewats 2 and 3 after their earlier sale and therefore remained co-sharers entitled to pre-empt the respondents' purchase.
- By virtue of the definition of “holding” in Section 3(3), every land-owner in the estate should be deemed a co-sharer, rendering them eligible to pre-empt irrespective of the precise location of their remaining land.
Respondents' Arguments
- After alienating practically their entire share, the appellants ceased to be co-sharers in the specific land sold and thus possessed no superior right of pre-emption.
- The appellants’ failure to produce the registered sale deed dated 19 May 1959 (referred to as 1969 in the record) warranted an adverse inference that nothing was in fact left to them in khewats 2 and 3.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Supreme Court characterised the issue as a narrow factual-legal enquiry: had the appellants proved the retention of 6 bighas 7 biswas within khewats 2 and 3 at the time of decree? Under Section 15(b) fourthly of the Punjab Pre-emption Act a co-sharer’s right must subsist both on the date of sale and on the date of decree. Although co-sharer status at the earlier point was undisputed, the Court stressed that the burden lay on the appellants to show a surviving share at the latter date.
The appellants, while possessing the registered deed by which they had conveyed most of their holdings, failed to produce it in any court. The Court endorsed the High Court’s application of the adverse-inference rule: when a material document within a party’s power is suppressed, the court may presume it would operate against that party. Oral testimony and revenue records were deemed insufficient to bridge the evidentiary gap because only the deed could establish whether the 6 bighas 7 biswas were located in the very khewats from which the impugned sale issued.
The alternative argument—that every land-owner in the estate is automatically a co-sharer in every parcel—was rejected as untenable; co-ownership must relate to the specific parcel sold. Consequently, the appellants had not proved a superior right of pre-emption, and the High Court’s dismissal of the suit was affirmed.
Holding and Implications
APPEAL DISMISSED WITH COSTS.
Direct effect: the decree of the Punjab High Court stands, extinguishing the appellants’ pre-emption claim and validating the respondents’ 1957 purchase. The decision reiterates that a pre-emptor must demonstrate an existing co-sharer interest in the very land sold up to the date of decree, and that non-production of crucial documentary evidence can defeat such a claim. No new legal principle was created, but the ruling reinforces evidentiary rigor in pre-emption litigation.
P. Jaganmohan Reddy, J.— This appeal is by certificate against the judgment of the Punjab High Court dismissing the pre-emption suit of the appellant by reversing the concurrent judgments of the trial court and the first appellate court.
2. The plaintiffs alleged that they had purchased on May 10, 1955 the share of Khetu and Chandu Ram in khewat 2, khata 26 to 24 and 6 bighas and 7 biswas in khewat 3, khatas 49 to 54 comprising in all an area of 213 bighas and 14 biswas. On April 16, 1957 Respondents 1 to 6 purchased 926 bighas in khewats 2 and 3 for Rs 43,600. Nearly a year thereafter the deed of sale was registered on March 19, 1958. The plaintiffs filed a pre-emption suit against Respondents 1-6 on the ground that they were biswadars and co-sharers in the land in dispute. For the purposes of this appeal, it is not necessary to consider their claim of biswadari rights because the claim on which the plaintiffs rely mainly is of their being co-sharers along with the vendors in the lands sold to Respondents 1-6. The suit was decreed on January 4, 1960 and on appeal the District Court confirmed the decree on March 6, 1961. The High Court, however, in second appeal reversed that decree on the ground that the appellants had not established that they had on the date of the decree any lands in which they were co-sharers with the vendors in the lands sold to Respondents 1-6. At this stage, we may mention that before the decree was passed by the trial court, the appellants had sold their co-sharers right in khewat 2, khatas 26-44 and khewat 3, khatas 49-54. It was their case that after the sale they still had co-ownership rights in 6 bighas and 7 biswas and consequently they were entitled to a decree for pre-emption. The trial court on oral evidence and other documentary evidence held that 6 bighas and 7 biswas that were said to have been retained by the appellants pertained to the co-ownership in the suit lands and consequently they had the right to pre-empt. As we said earlier, the first appellate court also took the same view.
3. The main question is whether the appellants had superior rights of pre-emption. What the appellants have to establish under Section 15(b) fourthly of the Punjab Pre-emption Act, is that the sale was out of joint land or property which had not been made by the co-sharers jointly and that they were the other co-sharers who had not joined in the sale. It is well settled that this right had to subsist in the plaintiffs not only at the time when the sale sought to be pre-empted was effective but up to the date of the decree. Though it was not disputed that the plaintiffs were co-sharers in the aforesaid khatas of khewats 2 and 3, what was contested was that after the transfer of practically the entire area on that date the plaintiffs ceased to be co-sharers who could pre-empt the sale relating to 926 bighas in khewats 2 and 3 because it was nowhere proved in which khata or khewat the area had been left and in what manner the plaintiffs remained co-sharers so far as the suit lands were concerned. The High Court pointed out that the appellants had not produced the sale deed dated May 19, 1969 by and under which they had sold their co-ownership rights in khewat 2, khatas 26-44 and khewat 3, khatas 49-54. In view of the omission to file the most important document, it was not possible to ascertain whether 6 bighas and 7 biswas which were said to have been left to them did in fact pertain to khewat 2, khatas 26-44 and khewat 3, khatas 49-54. The omission to file a document which was in the power and possession of the appellants entitled the High Court to draw an adverse inference against the appellants and in that view they had allowed the appeal and dismissed the suit. Some argument seems to have been advanced in the High Court based on the definition of holdings in Section 3(3) as meaning a share or portion of an estate held by one owner or jointly by two or more land owners. On this basis it was contended that the appellants being owners of the land which held the estate they must be regarded as co-sharers in the land in dispute. The High Court pointed out that by no stretch of reasoning each and every land owner in the village which is an estate can be regarded as a co-sharer of every parcel of land situated in that village no matter whether he has any share in that particular land or not. It appears to us that the issue is a narrow one, namely, whether the appellants had established that even if they had a co-ownership as alleged by them, in khewats 2 and 3, when they sold those rights, 6 bighas and 7 biswas, which they alleged were retained by them, were retained in khewats 2 and 3. No amount of oral evidence can establish this fact when in fact they could have established by a registered document. As pointed out by the High Court, even the patwari was not asked about it. For some reason, which the appellants must know best, they have not produced the sale deed either in the High Court or even at this stage. The sale deed is a public document and could have been easily looked into if they would have asked for it to be admitted at the appellate stage. The suppression of the document justified the drawing of an adverse inference that if it was produced, it would have established that the appellants had no lands left after they sold them on May 19, 1969. As the appellants have not established that they are co-owners in the lands sold on the date of the decree, they are not entitled to a decree of pre-emption. In this view, the appeal is dismissed with costs.
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