Reshmu & Ors. Vs. Rajinder Singh & Ors.
EmailAppeal: Civil Appeal No. 5110 of 1997
(From the Judgment and Order dated 8.1.97 of the Himachal Pradesh High Court in R.S.A. No. 372 of 1988)
Petitioner: Reshmu & Ors.
Respondent: Rajinder Singh & Ors.
Apeal: Civil Appeal No. 5110 of 1997
(From the Judgment and Order dated 8.1.97 of the Himachal Pradesh High Court in R.S.A. No. 372 of 1988)
Judges: S. SAGHIR AHMED & Y.K. SABHARWAL, JJ.
Date of Judgment: Feb 16, 2000
Appearances:
Mr. K.G. Bhagat, Mr. Debasis Misra, Mr. Kamal Baid, Advocates for the appellants.
Mr. A.V. Palli, Mr. Atul Sharma, Ms. Rekha Palli, Advocates for the Respondents.
Head Note:
CIVIL LAW
Civil Procedure Code, 1908
Order 20 Rule 14(1) – Pre-emption decree – Non-execution – Non-taking of possession – Effects – One ‘N’ and ‘B’ joint owners of land – ‘B’ selling land to one ‘H’ and others – Suit by son of ‘N’ named ‘S’ against ‘H’ and others for pre-emption – Suit decreed and amount deposited – Another suit by ‘S’ against successors of ‘H’ and others for declaration and injunction – Defendants seeking partition – Suit of ‘S’ ultimately decreed by High Court – Possession having not been delivered to ‘S’ pursu-ant to pre-emption decree – If decree cannot be relied upon. Held that plaintiff was already in possession. Sale by ‘B’ was of his undivided share. None has pleaded partition by ‘B’. Hence no actual possession was to be delivered. No infirmity in High Court judgment.
Civil Procedure Code, 1908
Order 20 Rule 14(1) – Pre-emption decree – Non-execution – Non-taking of possession – Effects – One ‘N’ and ‘B’ joint owners of land – ‘B’ selling land to one ‘H’ and others – Suit by son of ‘N’ named ‘S’ against ‘H’ and others for pre-emption – Suit decreed and amount deposited – Another suit by ‘S’ against successors of ‘H’ and others for declaration and injunction – Defendants seeking partition – Suit of ‘S’ ultimately decreed by High Court – Possession having not been delivered to ‘S’ pursu-ant to pre-emption decree – If decree cannot be relied upon. Held that plaintiff was already in possession. Sale by ‘B’ was of his undivided share. None has pleaded partition by ‘B’. Hence no actual possession was to be delivered. No infirmity in High Court judgment.
Held:
the title to the decree-holder accrues from the date of the payment required to be made under a pre-emption decree. In view of the deposit by the original plaintiff of the pre-emption amount in terms of the pre-emption decree, the dismissal of the execution petition was inconsequential since the plaintiff was in joint possession of the land, which was part of joint khata. The land sold which was subject matter of the pre-emption suit, was not any particular part of the land of joint khata but was undivided share therein. The share had never been separated by way of partition before sale. On the facts and circumstances of the case, no actual possession was required to be obtained or delivered. (Para 7)
JUDGEMENT:
SABHARWAL, J.
1. Respondents 1 to 4 are the legal heirs of the original plaintiff Suram Singh. The father of Suram Singh named Nand Lal was joint owner of the land in question along with one Bassia. In the year 1940, Bassia sold the land to Harnam Singh, Munshi Ram and Tilak Chand. In July 1941, Suram Singh brought a suit for pre-emption of this sale against Harnam Singh, Munshi and Tilak Chand. The said suit was decreed on 31st January, 1942, and directed payment of pre-emption amount on or before 1st April, 1942. The said amount was deposited by Suram Singh in Court as per the terms of the decree.
2. The suit out of which the present appeal has arisen was filed by Suram Singh against successors in the interest of Harnam Singh, Munshi and Tilak Chand inter alia seeking a decree of declaration that he is owner in possession of the land in question and also seeking relief of permanent injunction to restrain defendants from causing an interference in the enjoyment of the suit land by him.
3. In the suit, the deposit of the pre-emption amount by the plaintiff Suram Singh before first April, 1942, was duly proved. The trial court held that the plaintiff is the owner of the suit land though the possession is with the defendants without any title. The defendants had sought partition proceedings as their names continued in the revenue record. The trial court held that the partition proceedings are void since the defendants have no title to the land and the said proceedings were not binding upon the plaintiff. In the first appeal, the District Judge reversed the judgment and decree of the trial court. The District Judge allowing the appeal and dismissing the suit held that the defend-ants had continued in hostile possession since the time of the passing of the decree in pre-emption suit in favour of the plaintiff and thus they had become owner by adverse possession prior to the institution of the suit.
4. In the second appeal, the High Court, noticing that admittedly no plea with regard to adverse possession was raised by the defendants and the only plea taken by them was that they had come in possession as successors of the vendees, has reversed the aforesaid decision of the first appellate court. The High Court has held that the plaintiff is owner in possession of the land and the defendants have been restrained from interfering with the ownership and possession of the plaintiff. The defendants have filed this appeal challenging the decision of the High Court.
5. The High Court has noticed that the pre-emption amount stood deposited on 31st March, 1992 and, therefore, title to land in dispute passed on to the plaintiff w.e.f. that date. It has been further found by the High Court that though no possession was obtained by the plaintiff but on the facts of the case, no actual possession, in fact, was required to be obtained by him since the land formed part of a joint khata of which plaintiff was one of the co-sharers, and the share of vendor Bassia was never separat-ed by way of partition before sale by him. He had sold his undi-vided share in the joint khata. The plaintiff, being a co-sharer, was in possession of the land in dispute along with other co-sharers and he was never ousted from his joint possession. The title of the plaintiff came to be denied by defendants only when they moved the revenue authorities for partition of the joint khata and at that stage, the suit was filed.
6. The only contention urged by the Learned Counsel of Appellants is that the possession having not been delivered to the plaintiff in terms of the pre-emption decree, the plaintiff cannot rely upon the said decree, particularly when the execution petition filed by the plaintiff was dismissed. Reliance has been placed on Rule 14(1) of Order 20, Code of Civil Procedure, which reads as under :
“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
(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.”
7. A plain reading of the aforesaid provision shows that the title to the decree-holder accrues from the date of the payment required to be made under a pre-emption decree. In view of the deposit by the original plaintiff of the pre-emption amount in terms of the pre-emption decree, the dismissal of the execution petition was inconsequential since the plaintiff was in joint possession of the land, which was part of joint khata. The land sold by Bassia, which was subject matter of the pre-emption suit, was not any particular part of the land of joint khata but was his undivided share therein. The share of Bassia had never been separated by way of partition before sale by him. The plaintiff was already in possession of the land along with other co-sharers. There is neither any plea nor any filing of partiton having been effected by Bassia. On the facts and circumstances of the case, no actual possession was required to be obtained or delivered. When there was threat to the title of the plaintiff, the suit was filed by him. We find no infirmity in the decision of the High Court.
8. The appeal is thus dismissed. Parties are, however, left to bear their own costs.
1. Respondents 1 to 4 are the legal heirs of the original plaintiff Suram Singh. The father of Suram Singh named Nand Lal was joint owner of the land in question along with one Bassia. In the year 1940, Bassia sold the land to Harnam Singh, Munshi Ram and Tilak Chand. In July 1941, Suram Singh brought a suit for pre-emption of this sale against Harnam Singh, Munshi and Tilak Chand. The said suit was decreed on 31st January, 1942, and directed payment of pre-emption amount on or before 1st April, 1942. The said amount was deposited by Suram Singh in Court as per the terms of the decree.
2. The suit out of which the present appeal has arisen was filed by Suram Singh against successors in the interest of Harnam Singh, Munshi and Tilak Chand inter alia seeking a decree of declaration that he is owner in possession of the land in question and also seeking relief of permanent injunction to restrain defendants from causing an interference in the enjoyment of the suit land by him.
3. In the suit, the deposit of the pre-emption amount by the plaintiff Suram Singh before first April, 1942, was duly proved. The trial court held that the plaintiff is the owner of the suit land though the possession is with the defendants without any title. The defendants had sought partition proceedings as their names continued in the revenue record. The trial court held that the partition proceedings are void since the defendants have no title to the land and the said proceedings were not binding upon the plaintiff. In the first appeal, the District Judge reversed the judgment and decree of the trial court. The District Judge allowing the appeal and dismissing the suit held that the defend-ants had continued in hostile possession since the time of the passing of the decree in pre-emption suit in favour of the plaintiff and thus they had become owner by adverse possession prior to the institution of the suit.
4. In the second appeal, the High Court, noticing that admittedly no plea with regard to adverse possession was raised by the defendants and the only plea taken by them was that they had come in possession as successors of the vendees, has reversed the aforesaid decision of the first appellate court. The High Court has held that the plaintiff is owner in possession of the land and the defendants have been restrained from interfering with the ownership and possession of the plaintiff. The defendants have filed this appeal challenging the decision of the High Court.
5. The High Court has noticed that the pre-emption amount stood deposited on 31st March, 1992 and, therefore, title to land in dispute passed on to the plaintiff w.e.f. that date. It has been further found by the High Court that though no possession was obtained by the plaintiff but on the facts of the case, no actual possession, in fact, was required to be obtained by him since the land formed part of a joint khata of which plaintiff was one of the co-sharers, and the share of vendor Bassia was never separat-ed by way of partition before sale by him. He had sold his undi-vided share in the joint khata. The plaintiff, being a co-sharer, was in possession of the land in dispute along with other co-sharers and he was never ousted from his joint possession. The title of the plaintiff came to be denied by defendants only when they moved the revenue authorities for partition of the joint khata and at that stage, the suit was filed.
6. The only contention urged by the Learned Counsel of Appellants is that the possession having not been delivered to the plaintiff in terms of the pre-emption decree, the plaintiff cannot rely upon the said decree, particularly when the execution petition filed by the plaintiff was dismissed. Reliance has been placed on Rule 14(1) of Order 20, Code of Civil Procedure, which reads as under :
“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
(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.”
7. A plain reading of the aforesaid provision shows that the title to the decree-holder accrues from the date of the payment required to be made under a pre-emption decree. In view of the deposit by the original plaintiff of the pre-emption amount in terms of the pre-emption decree, the dismissal of the execution petition was inconsequential since the plaintiff was in joint possession of the land, which was part of joint khata. The land sold by Bassia, which was subject matter of the pre-emption suit, was not any particular part of the land of joint khata but was his undivided share therein. The share of Bassia had never been separated by way of partition before sale by him. The plaintiff was already in possession of the land along with other co-sharers. There is neither any plea nor any filing of partiton having been effected by Bassia. On the facts and circumstances of the case, no actual possession was required to be obtained or delivered. When there was threat to the title of the plaintiff, the suit was filed by him. We find no infirmity in the decision of the High Court.
8. The appeal is thus dismissed. Parties are, however, left to bear their own costs.
