IN THE HI Ajit Singh Waryam Singh CORAM: Present:- NIDHI GUPTA, Court against learned Addit decree dated 3 City dismissing respondent/pl 2. status before as the ‘defend plaintiff’. Vide decree dated 0 further been defendant no. E HIGH COURT OF PUNJAB AND HA Date of Vs. ingh HON’BLE MS. JUSTICE NID Mr. Rakesh Gupta, Advocat for the appellant. Mr. Malkeet Singh, Advoca Mr. Mohit Potalia, Advocat for respondent No.1. *** PTA, J. The defendant No.1 is in inst the judgment and decree dat dditional District Judge, Ambala ted 31.01.1991 passed by the learne ssing the suit of the plaintiff, has be t/plaintiff has been decreed. The parties shall hereinafte ore the learned trial Court i.e. the a fendant no.1’; and the respondent Vide order dated 30.01.1992 exec ted 09.01.1992 was stayed by this C en stated by learned counsel for t no.1 is presently in possession of th D HARYANA AT CHANDIGARH RSA-218-1992 (O&M) of pronouncement: 27.02.2025 ...Appellant(s) ...Respondent(s) NIDHI GUPTA ocate ocate with ocate is in Second Appeal before this dated 09.01.1992 passed by the ala whereby the judgment and arned Sub-Judge, III Class, Ambala s been reversed and appeal of the nafter be referred to as per their he appellant shall be referred to dent shall be referred to as ‘the execution of the judgment and is Court till further orders. It has for the defendant No.1 that the of the suit property. 10 his he nd ala he SUNENA 2025.02.28 12:32 I attest to the accuracy and integrity of this document 3. sharer, filed th agricultural su 250, 291, 251 the suit land a dated 17.2.19 He was always defendant no. defendant no through above plaintiff has ac 4. appeared and plaintiff was partial preemp 5. were framed: Brief facts of the case ar d the suit for recovery of possess suit land as described in the plai 251, 293, and 307. The plaintiff alle nd at the time of execution of the 1988 by the defendant no.2 in the ways ready to purchase the suit land t no.2 had not acceded to his reques t no.1 in view to defeat the pre bove said registered sale deed date as accrued his right to pre-empt the Upon notice, the defend and filed written statement, resist co-sharer in the suit land; and st emption. On the basis of pleadings o ed:- “1. Whether the plaintiff has go right to pre emption sale in questi 2. Whether the suit is not maintai 3. Whether the suit is bad for part 4. Whether the plaintiff has n emption money in time?If so, to w 5. Whether the suit is barred by tim are that the plaintiff being co- session by way of pre-emption of plaint, comprising in khewat nos. alleged that he was co sharer in the registered sale deed no.7807 the favour of the defendant no.1. land from defendant no.2 but the quest and sold the suit land to the re-emptory right of the plaintiff ted 17.2.1988 No.7807 and the the sale deed. fendant No.1/appellant herein sisting the suit by denying that stating that the suit is bad for ngs of the parties, following issues got a superior and preferential uestion?OPP intainable in present form?OPD partial pre-emption?OPD as not deposited one fifth pre- to what effect?OPD by time?OPD 10 - of os. in 07 .1. he he tiff he es tial - SUNENA 2025.02.28 12:32 I attest to the accuracy and integrity of this document 6. evidence brou the Issue no.1 that as per Ex as co-sharer that as per th sharer in the defendant no. pressed. Issue defendant hol had admitted Suit land with favour of the went in favou vide judgmen dismissed the 6. Whether the plaintiff is estopp his own act and conduct?OPD 7. Whether the plaintiff has recl purchase, if so at what expense an 8. Whether the defendant has purchases on non-judicial stamp p and on scribe etc. If so to what eff 9. Relief.” On the basis of arguments brought on record by the parties, th no.1 against the plaintiff and in favo Ex.P-1/ Jamabandi for the year 19 in the suit property at the time o er the revenue record the plaintiff the suit land, has also stepped int no.1. Issue no.2 was decided agai ssue no.3 was decided against the holding that the suit is bad for pa ttedly excluded Khasra no. 38/24/ without any explanation. Issue nos the plaintiff and against the defen avour of the defendants and again ment and decree dated 31.01.1 the suit of the plaintiff as plaintiff c stopped to file the present suit by reclaimed the suit land after its se and to what effect?OPD has incurred the expenses on mp papers on registration charges t effect?OPD ents and oral and documentary s, the learned trial Court decided favour of the defendant holding r 1983–84, the plaintiff is shown e of execution of sale deed; and intiff, not being the original co- into the same capacity as the against the defendant being not the plaintiff and in favour of the r partial pre-emption as plaintiff 24/19(0-2), 1981(1-1) from the nos. 4, 5, and 6 but decided in fendant; and Issue nos.7 and 8 gainst the plaintiff. Accordingly, 01.1991the learned trial court tiff could not establish himself as 10 by its on es SUNENA 2025.02.28 12:32 I attest to the accuracy and integrity of this document co-sharer in th emption. 7. District Judge dated 9.1.199 of Issues no.1 asserted his c evidence as PW regard during therefore, the to pre-empt t no.250. As reg the suit was n and decree of was decreed t sale on payme default, the su the defendant 8. persuasively s pre-emption c learned Appel emptor that h in the suit property; and as the suit The plaintiff filed appeal b dge, Ambala which was allowed .1992, reversing the findings of the no.1 and 3. The ld. First Appellate his co-sharership in the suit land as PW1; and that no question was d ring cross-examination by the the plaintiff had been able to prov pt the impugned sale in respect o s regards Issue no.3, the learned 1 as not bad for partial pre-emption e of the learned trial Court was set ed to the extent that he was entitle yment of total amount of Rs.37,27 e suit shall stand dismissed. Hence dant no.1. Learned counsel for ly submits that as per the establi on could not have been permitte ellate Court erred in recording a at he was a co-sharer in the suit l suit was also bad for partial pre- al before the learned Additional ed vide judgment and decree the learned trial court in respect ate Court held that plaintiff had nd in the plaint; as also in his as directed at the plaintiff in this he defendant no.1/DW1; and prove that he had superior right ct of land comprising in khewat d 1st Appellate Court held that tion. Accordingly, the judgment set aside and suit of the plaintiff titled to pre-empt the impugned 7,275/- by 31.1.1992. In case of ence, present second appeal by r the defendant No.1 very ablished position in law, partial itted. It is submitted that the g a finding in favour of the pre- uit land. The said finding is not 10 SUNENA 2025.02.28 12:32 I attest to the accuracy and integrity of this document proved from t can support th pre-emptor ha 1981(1-1). Be Shamlat Deh pre-empted w partial pre-em show that the empted. The l against the ap not purchased Court in 1970 sharer in the sharer. Therefo of the appellan 9. relies upon ju Law Finder Do Law Finder Do 10. No.1/plaintiff the suit land plaintiff was e m the evidence on record. There is rt this finding. The suit was bad fo r had left the suit land comprising Besides that the pre-emptor had eh which were sold by the vendo d which were attached to the lan emption. A bare perusal of the pla the rights which were attached wit he ld. Appellate Court has erred in e appellant and in favour of the plain ased the entire holdings in the su 970 PLJ 198 and 1970 PLR 341, the the joint estate unless he purchas erefore, these issues no.1 and 3 des ellant and against plaintiff. In support of his conten judgments of this Court in “Gang r Doc ID # 62298, and in “Shiv Ram r Doc ID # 75630. Per contra, learned cou tiff submits that admittedly the pl nd; and was therefore, co-sharer in as entitled for pre-emptory decree re is no material evidence which d for partial pre-emption as the sing in Khasra no. 38/24/19(0-2), had not claimed the rights of ndor. Since the rights were not e land so the suit was bad for e plaint and the sale deed would with the suit land were not pre- d in deciding issue Nos.1 and 3 plaintiff. Admittedly, plaintiff has e suit land; and as held by our the plaintiff does not become co- hases the entire share of a co- deserve to be returned in favour ntentions, the learned counsel anga Singh Vs. Narinjan Singh” am & Others Vs. Shree Des Raj” counsel for the respondent e plaintiff was owner of part of er in the suit land. As such, the cree in his favour as he had first 10 SUNENA 2025.02.28 12:32 I attest to the accuracy and integrity of this document right over the accordingly su learned First Bench judgme Another” Law 11. present appea 12. 13. perused the ca 14. case is wheth pre-emption. Jamabandi for in the suit lan execution of placed as def purchased the r the suit property in view of his submitted that there is no error in irst Appellate Court. Learned coun gment of this Court in “Lachhman Law Finder doc ID # 58679, wherein “Punjab Pre-emption Act, 1913, "Co-sharers" - Meaning of - numbers in specified rectangles terms of their sale deed, purch beyond the share of land sold to co-sharers in the remaining joint l Learned counsel according peal. No other argument is made I have heard learned co e case file in great detail. The short question to be hether the suit of the plaintiff/pre on. The undisputed facts on rec i for the year 1983-84/Ex.P-1, the p land, however he was also a vend of the sale deed dated 17.2.1988 defendant no.1. Moreover, admit the whole of the suit land. As suc f his admitted ownership. It is or in the judgment passed by the ounsel relies upon three-Judge man Singh Vs. Pritam Chand & rein it has been held as under:- 13, Section 15 (1)(b) Fourthly - - Purchaser of specific killa gles out of joint land such - In purchaser do not have a right d to them - They do not become oint land.” dingly prays for dismissal of the ade on behalf of the parties. counsel for the parties and be determined in the present /pre-emptor was bad for partial record are that, although in he plaintiff is shown as co-sharer vendee in the suit land prior to 1988. As such he was similarly dmittedly, the plaintiff had not such, the plaintiff has not filed 10 SUNENA 2025.02.28 12:32 I attest to the accuracy and integrity of this document the suit with r 17.2.1988 as a Khasra no. 38 below has hel with regard t contention of be said to hav was bad for pa by holding th emption in res by pre-emptor 15. position in thi the Preempti Besides, it ha emption is a w recent judgme Subrata Bhatt # 1984040, wh ith regard to entire land involved in as admittedly, the plaintiff has left . 38/24/19(0-2), 1981(1-1). Howev held that the plaintiff is certainly e rd to his portion of land in wh of defendant/appellant to the effe have superior right to pre-empt the or partial pre-emption, was rejected g that the Pre-emptor could cla n respect of that rectangle, a share w or at an earlier point of time. However, the said reason n this regard is now very clear. By ption Act, the co-sharer has los has been held in numerous ju s a weak right. In this regard, refer gment of the Hon’ble Supreme Cou hattacharjee (Banerjee) & Others wherein, it has been held that: – “6. At this outset, it is required to submitted the application befor under Section 5 of the Act, 1955, by their sisters. Therefore, the con the original pre-emptors sought t emptors under the provisions of ed in impugned sale deed dated left the suit land comprising in wever, the ld. Appellate Court nly entitled to pre-empt the sale which he was co-sharer. The effect that the Plaintiff could not t the impugned sale as suit itself cted by the learned court below claim a superior right of pre- are whereof had been purchased asoning is flawed as the legal By virtue of the amendment in lost his right of preemption. s judgments that right of pre- eference may firstly be made to Court in “Abdul Matin Mallick v. hers” (SC) : Law Finder Doc Id ed to be noted that pre-emptors before the learned Trial Court 955, in respect of the share sold e contesting respondents herein - ght to exercise their right as pre- s of the Act, 1955. The right of 10 SUNENA 2025.02.28 12:32 I attest to the accuracy and integrity of this document ju 16. emption a we present case, however, he c co-sharer in th 17. judgment reli Ganga Singh ( the pre-emption has been ela considered by a Four Judge Benc of Bishan Singh v. Khazan Singh, paragraph 11, it is observed and h "11. ... (1) The right o the thing sold but a right to be sold. This right is called (2) The pre-emptor has a s right to follow the thing substitution but not of re takes the entire bargain an original vendee. (4) It is a the property sold and not (5) Preference being the ess must have a superior right person substituted in his pla weak right, it can be defeat such as the vendee allowing equal right being substitute 6.1 Thus, as observed and held b judgment, the right of pre-empt That being the character of the rig such a right must, thus, be stric Hospital and Ors. (supra)]” From the above ruling, it weak right, but partial pre-empt se, admittedly, the prayer of the pla he could not pre-empt the entire s in the entire land. In this regard, reference relied upon by learned counsel f gh (supra), wherein it is held that: n elaborately dealt with and Bench of this Court in the case ngh, AIR 1958 SC 838, wherein at and held as under: - ght of pre-emption is not a right to ht to the offer of a thing about to lled the primary or inherent right. s a secondary right or a remedial thing sold. (3) It is a right of f re-purchase i.e. the pre-emptor in and steps into the shoes of the is a right to acquire the whole of not a share of the property sold. e essence of the right, the plaintiff right to that of the vendee or the is place. (6) The right being a very efeated by all legitimate methods, wing the claimant of a superior or ituted in his place." eld by this Court in the aforesaid emption is "a very weak right". he right, any provision to enforce strictly construed. [Barasat Eye (Emphasis added) , it is clear that not only is pre- mption is impermissible. In the e plaintiff was for the entire land, ire suit land because he is not a nce may also be made to the el for the appellant in case of at: – 10 to to ht. ial of tor the of ld. tiff the ery ds, or SUNENA 2025.02.28 12:32 I attest to the accuracy and integrity of this document Ju fir “.....The lower appellate Court as Judge have taken the view that su a pre-emptor cannot sue for pa being that in pre-emption there emptor for the vendee and the property. The matter is not res in Full Bench decision of the Lahore and others v. Ditta and others, A Division Bench decision of that C Nath deceased, through his repr (1933) 14 Lahore 810. Mr. Sarin, h to cases decided by Oudh High Co Singh v. Pt. Prag Narain and o wherein it has been held that ther emptor suing for pre-emption of payment of entire sale considerat the learned Judges who decided view that they do not lay down th first place, it has not been broug law of pre-emption law prevaili place, so far as the pre-empt concerned, one rule is firmly se emption is a right of substitution. the vendee is rubbed from the sa emptor is introduced therein. The at the matter. Supposing, the vend particular purpose and by permit payment of the whole considerati property which does not serve his bound down to that part of the p argument to say that there is no l rt as well as the learned Single at such a suit would be barred as or partial pre-emption the rule here is substitution of the pre- there is no retransfer of the es integra. It is concluded by the ore High Court in Ghulam Qadir ers, AIR 1945 Lahore 184 and a at Court in Tirath Ram v. Dina representatives and others, ILR rin, however, drew our attention gh Court, the latest being Paltan nd others, AIR 1945 Oudh 167, t there is nothing wrong in a pre- n of a part of the property on deration. With utmost respect to ided these cases, we are of the wn the correct rule of law. In the rought to our notice what is the vailing in Oudh. In the second emption law in the Punjab is ly settled that the right of pre- tion. In other words, the name of e sale deed and that of the pre- . There is another way of looking vendee purchases property for a ermitting partial pre-emption on eration he is left with part of the e his purpose, he is unnecessarily the property and it would be no s no loss to the vendee. From the 10 SUNENA 2025.02.28 12:32 I attest to the accuracy and integrity of this document fa 18. relied upon ju distinguishable 19. the present ap 9.1.1992 of th 20. 27.02.2025 Sunena Whether spea Whether repo various considerations which hav dealing with a claim of pre-emp the right of pre-emption being a r basis of that right is destroyed partial pre-emption though on p consideration. The view we have authorities. For the reasons reco fail and are dismissed. As there respondent, there will be no order The respondent-plaintiff ca n judgment in case of Lachhman S able on facts and law. In view of the above note t appeal is allowed. The impugned f the ld. Lower Appellate Court is he Pending application(s) if an peaking/reasoned: Yes/No eportable: Yes/No have to be taken notice of while emption and as already stated, g a right of substitution, the very yed by permitting a decree for on payment of the entire sale ave taken is amply supported by recorded above, these appeals ere is no representation for the order as to costs.” iff can derive no benefit from the an Singh (supra) as the same is oted, factual and legal position, ned judgment and decree dated hereby set aside. if any also stand(s) disposed of. (Nidhi Gupta) Judge 10 SUNENA 2025.02.28 12:32 I attest to the accuracy and integrity of this document