Sham Sunder v. Ram Kumar

N.K Kapoor, J. — This is vendees' Regular Second Appeal against the judgment and decree of the Courts below whereby the suit of the plaintiffs was decreed by the trial Court and appeal therefrom was dismissed by Additional District Judge, Rohtak.

2. Briefly put the plaintiffs filed suit for possession by way of pre- emption claiming superior right of pre-emption in respect of land sold, vide registered sale deed dated 18.7.1985 According to the plaintiffs, though the sale consideration was, as stipulated in the sale deed. Rs. 84,000/- but in fact, only a sum of Rs. 54,000/- was paid and the remaining amount of Rs. 30,000/- was fictitiously shown in the sale deed so as to scare away the perspective pre-emptor. Defendants put in appearance, filed joint written statement and denied averments of the plaintiffs that they have superior right of pre-emption. The defendants further averred that they are also co-sharers in the suit land since 28.6.1985 They further averred that they were tenants of the suit land since year 1981. The defendants averred that the sale consideration was Rs. 84,000/- and this was also the market value at the time of sale. On the pleadings of the parties, the following issues were framed:—

1) Whether the plaintiffs have superior right to preempt the sale in dispute? OPP

2) Whether the defendants were the tenants on the suit land on the day of purchase? OPD

3) Whether the plaintiffs are estopped to file the suit by their own act and conduct? OPD

4) Whether all the necessary parties have been impleaded, if not so, to what its effect? OPD.

5) Whether the defendants have improved the suit land? OPD

6) Relief.

The trial Court, on the basis of evidence, came to the conclusion that the plaintiffs have superior right of pre-emption being co-sharers and so it decided issue No. 1 in favour of the plaintiffs. Under issue No. 2, the trial Court held that the defendants have failed to prove their right of tenancy over the suit land at the time of sale. Issue No. 3 was not pressed and was decided against the defendants. Issue No. 4 was also decided against the defendants. Issue No. 5 was not pressed by the defendants, so the same was decided against the defendants. Resultantly, the suit of the plaintiffs was decreed on payment of Rs. 84,000/- as purchase money, Rs. 10,500/- as stamp charges, Rs. 500/- as registration charges and Rs. 100/- as miscellaneous charges, in all Rs. 95,100/- less one-fifth of the pre-emption money, already deposited. The court directed the plaintiffs to deposit the remaining amount on or before 30th July, 1990 and in case the same is deposited, the suit shall stand decreed and on the failure of the plaintiffs to comply with this order, the suit shall be deemed to have been dismissed with costs.

3. Before the appellant Court, the appellants confined their attack with regard to the finding in respect of issues No. 1 and 2 only. With a view to seek reversal of finding on issue No. 1, the counsel for the appellants urged that the trial Court has indeed erred in law in relying upon the copy of the mutation to come to the conclusion that the plaintiffs are co-sharers in the suit land. According to him such an approach runs counter to the decision of this Court reported as State of Punjab v. Pohu and another, 1986 (1) L.L.R 181 and Bachint Kaur v. The State of Punjab, 1990 (2) L.J.R 76 : 1991 (1) RRR 407. Besides this, it was urged that even the appellants have become co-sharers since 28-6-1985, and this way too, the trial Court erred in law in decreeing the claim of the plaintiffs. The counsel further highlighted that the defendants are in cultivating possession of the suit land as tenants-at-will on payment of one-third batai since 1981.

4. The appellate Court examined the various contentions raised by the counsel for the appellants. Admittedly, the sale deed in favour of the plaintiffs is dated 12.7.1985, whereas the sale deed, subject-matter of the appeal is dated 17-7-1985. Sham Sunder, one of the defendants appearing as DW-3, has admitted in his cross-examination that Ram Kumar and Karan Singh had purchased the land from this Ktaewat, earlier to the impunged sale deed in his favour. The appellate Court relying upon the admission of Sham Sunder, affirmed the finding of the trial Court. As regards the copy of mutation, it was observed that at least these documents can be taken into consideration to hold that transaction of sale took place in favour of Ram Kumar etc. on 12.7.1985 As regards the contention of the defendants that they became co- sharers from the day the agreement to sell was executed, i.e 28.6.1985 The same was found to be without any merit As regards the contention of appellants that they were tenants-at-will since Khariff 1982, the appellate Court ignored these entries on the short ground that the order passed by the Assistant Collector Second Grade and Collector, Gohana Exhibit D-3 was wholly without jurisdiction, as the entries in Khasra girdawari stand incorporated Page: 338in copy of jamabandi for the year 1987-1988 Exhibit P-7. This way appeal too was dismissed.

5. The first submission of the learned counsel for the appellants is that both the Courts below had erred in law in not properly examining the contentions raised. It is admitted case of the parties that the appellants too have become co-sharers on the basis of sale deed dated 17-7-1985. Merely for the reason that a few days earlier thereto, the plaintiffs became co-sharer of the land, subject-matter of the present adjudication, on the basis of the sale deed 12.7.1985, they would have superior right of pre-emption. In fact, this could not be intended by the law maker. Such a construction of the statutory provision runs counter to the judgment in Atam Parkash v. State of Haryana, 1986 P.L.J 191 (S.C) The real intention to retain the right of co-sharer to pre-empt was to exclude the outsider as the entry of a stranger would make the common management more difficult and thus destroyed the benefit of ownership in common. However, in the present case, in fact, both are strangers, i.e, the plaintiffs having purchased a share in the joint khewat, vide sale deed dated 12.7.1985 whereas the appellants, vide sale deed dated 18.7.1985

6. I find no merit in this submission of the learned counsel for the appellants. A bare perusal of the judgment in Atam Parkash's case (supra) makes it abundantly clear that whereas the right to pre-empt based on relationship has been declared ultra vires, right of pre-emption given to a co-sharer has been retained. Since, admittedly, the plaintiff were co-sharers on the basis of sale deed dated 12.7.1985 before the impugned sale deed in favour of the appellants, both the Courts rightly decreed the suit of the plaintiffs holding them entitled to pre-empt the sale being co-sharers.

7. The next contention of the learned counsel for the appellants is that the lower appellate Court has erred in ignoring the entries in khasra girdawari which clearly record the appellants as tenants at will since Kharif 1982. The lower appellate Court declined to rely upon the entries in respect of Kharif 1982 on the short ground that these entries were made on the basis of order of Assistant Collector IInd Grade, who, in fact, had no jurisdiction to correct the same as the entries in respect of Kharif 1982 stood incorporated in the jamabandi for the year 1987-1988. This conclusion of the lower appellate Court is perfectly legal. Assistant Collector IInd Grade had no jurisdiction to order for correction of entries in respect of crop of Kharif 1982 when the entries in respect of this year had already been incorporated in the jamabandi for the year 1987-1988.

No other point was pressed.

The appeal is wholly without any merit and the same is dismissed. The parties to bear their own costs. Civil Misc. No. 3803-C of 1991 also stands dismissed.