Pokhar (dead) by Lrs. & Others Vs. Ram Singh
EmailAppeal: Civil Appeal No. 4418 of 1986
Petitioner: Pokhar (dead) by Lrs. & Others
Respondent: Ram Singh
Apeal: Civil Appeal No. 4418 of 1986
Judges: V.N. KHARE & B.N. AGRAWAL, JJ.
Date of Judgment: Aug 14, 2001
Head Note:
PRE-EMPTION
Punjab Pre-emption Act
Section 15(1)(b) – (as applicable to Haryana) Sale of specific portion of land – Land described by particular khasra numbers, but out of joint khewat – Sale by co-sharer – Khewat not partitioned. Held that the sale was pre-emptiable. Bhartu v. Ram Sarup (1981 PLJ 204) relied upon by High Court and view approved. (Para 2)
Cases Reffered:
1. Bhartu v. Ram Sarup (1981 PLJ 204) (Para 2)
JUDGEMENT:
ORDER
1. The defendant-appellant herein, by a registered sale deed dated 24.8.1967, purchased the land measuring 66 bighas 13 biswas out of 94 bighas 3 biswas comprising in khasra nos. 210 min-109(73-0), 210 min 109(10-3) and 209/109 (11-0) situated in village Kairu in the district of Bhiwani. Subsequently, the plaintiff-respondent herein, who claims to be the co-sharer filed a suit for possession by way of pre-emption. The trial court decreed the suit. By the judgment of the first appellant court, the decree of the trial court was reversed and the suit stood dismissed. Thereafter, the plaintiff preferred the second appeal before the High Court. The High Court allowed the second appeal, set aside the judgment of the first appellate court and restored the decree of the trial court. It is against the said judgment, the defendant-appellants are in appeal before us.
2. It is not disputed that the plaintiff is a co-sharer. It is also not disputed that the khewat has not been partitioned. It is also not disputed that the Punjab Pre-emption Act is applicable to the State of Haryana and under the Punjab Pre-emption Act, a co-sharer has a right to pre-empt a sale. However, what was argued is that since the land in dispute is a gair mumkin consisting of pasture and pond meant for the benefit of the village community, the law of pre-emption cannot be extended to such a land. This question was not urged before the High Court. We are, therefore, not inclined to entertain the argument. The only question raised before the High Court is whether a sale of a specific portion of khasra is hit by right of pre-emption under section 15(1)(b) of the Punjab Pre-emption Act as applicable to the State of Haryana. The High Court, relying upon the judgment of the full bench of the Punjab & Haryana High Court in Bhartu v. Ram Sarup (1981 PLJ 204), held that a sale of a specific portion of land described by the particular khasra numbers by a co-owner out of joint khewat would be sale of share out of the joint khewat and pre-emptiable under section 15(1)(b) of the Act. We are in agreement with the view taken by the High Court.
3. Learned counsel then urged that the plaintiff-respondent is a big landlord and under the provisions of the Ceiling Act, he is not entitled to retain that much of land and in any case, the land being pasture land and meant for village community, the appeal is required to be allowed. At present, we cannot assume what the learned counsel has stated is beyond the scope of suit. In case the plaintiff is in excess of land or the land is meant for village community, the law will take its own course and the appellants may pursue such remedy as may be available to them under law.
4. For the aforesaid reasons, we dismiss the appeal. There shall be no order as to costs. The applicants shall be entitled to withdraw the purchase money already deposited by the plaintiff-respondent.
1. The defendant-appellant herein, by a registered sale deed dated 24.8.1967, purchased the land measuring 66 bighas 13 biswas out of 94 bighas 3 biswas comprising in khasra nos. 210 min-109(73-0), 210 min 109(10-3) and 209/109 (11-0) situated in village Kairu in the district of Bhiwani. Subsequently, the plaintiff-respondent herein, who claims to be the co-sharer filed a suit for possession by way of pre-emption. The trial court decreed the suit. By the judgment of the first appellant court, the decree of the trial court was reversed and the suit stood dismissed. Thereafter, the plaintiff preferred the second appeal before the High Court. The High Court allowed the second appeal, set aside the judgment of the first appellate court and restored the decree of the trial court. It is against the said judgment, the defendant-appellants are in appeal before us.
2. It is not disputed that the plaintiff is a co-sharer. It is also not disputed that the khewat has not been partitioned. It is also not disputed that the Punjab Pre-emption Act is applicable to the State of Haryana and under the Punjab Pre-emption Act, a co-sharer has a right to pre-empt a sale. However, what was argued is that since the land in dispute is a gair mumkin consisting of pasture and pond meant for the benefit of the village community, the law of pre-emption cannot be extended to such a land. This question was not urged before the High Court. We are, therefore, not inclined to entertain the argument. The only question raised before the High Court is whether a sale of a specific portion of khasra is hit by right of pre-emption under section 15(1)(b) of the Punjab Pre-emption Act as applicable to the State of Haryana. The High Court, relying upon the judgment of the full bench of the Punjab & Haryana High Court in Bhartu v. Ram Sarup (1981 PLJ 204), held that a sale of a specific portion of land described by the particular khasra numbers by a co-owner out of joint khewat would be sale of share out of the joint khewat and pre-emptiable under section 15(1)(b) of the Act. We are in agreement with the view taken by the High Court.
3. Learned counsel then urged that the plaintiff-respondent is a big landlord and under the provisions of the Ceiling Act, he is not entitled to retain that much of land and in any case, the land being pasture land and meant for village community, the appeal is required to be allowed. At present, we cannot assume what the learned counsel has stated is beyond the scope of suit. In case the plaintiff is in excess of land or the land is meant for village community, the law will take its own course and the appellants may pursue such remedy as may be available to them under law.
4. For the aforesaid reasons, we dismiss the appeal. There shall be no order as to costs. The applicants shall be entitled to withdraw the purchase money already deposited by the plaintiff-respondent.
