Read Order: Bachan Singh (deceased) through his Legal Representatives v. Chuhar Singh alias Ajmer Singh (since deceased) through his Legal Representatives

Monika Rahar

Chandigarh, April 19, 2022: While dealing with a regular second appeal filed by vendee (former tenant of the vendor) assailing the decision of the lower Appellate Court decreeing the suit of plaintiff for pre-emption, the Punjab and Haryana High Court has held that the right of pre-emption is a very weak right and can be defeated by resorting to all legal means necessary for defeating the said right. 

While adjudicating upon the case, the Bench of Justice Alka Sarin also held that provisions of Order 20 Rule 14 CPC have been held to be mandatory in nature and any default in depositing the pre-emption money would result in dismissal of the suit. 

The present regular second appeal was filed by the defendant-appellant challenging the judgment and decree of the lower Appellate Court decreeing the suit of the plaintiff-respondent while reversing the judgment and decree passed by the Trial Court. 

Essentially, the case in a nutshell is that one Smt. Nirmala Devi was co-owner to the extent of 1/3 share in suit land. Vide a registered sale deed, she sold the said land to the defendant-appellant (her tenant) for sale consideration of certain amont. In June 1986, a suit was filed by the plaintiff-respondent for possession by way of pre-emption on the ground that he was a co-sharer in the land and hence had a superior right to pre-empt the sale in question. This suit was contested by the defendant-appellant.

Smt. Nirmala Devi, the vendor was impleaded as the second defendant, however, later she was given up as being an unnecessary party to the suit. The defendant-appellant averred in his written statement that he was a tenant under Smt. Nirmala Devi (the vendor) on the suit land at the time of sale and that the sale in his favor was not preemptible. It was further averred that an amount of Rs. 45,000/- was paid as consideration and registered sale deed was executed in favour of the defendant-appellant. A replication was filed reiterating the stand taken in the plaint.

Via its judgement and decree, the Trial Court, relying on Khasra Girdawari for Kharif 1983 to Rabi 1984 (wherein the defendant-appellant was shown in cultivating possession of the suit land as tenant under Smt. Nirmala Devi) and also relying on the agreement to sell which contained a recital that the defendant-appellant was a tenant over the suit land and further relying the sale deed in question, dismissed the suit holding the sale to be not preemptible as per the provisions of Section 17-A of the Punjab Security of Land Tenures Act, 1953 (‘Land Tenures Act’).

Aggrieved, the plaintiff-respondent preferred an appeal which was allowed holding therein that since the change of entry in the Khasra Girdawari was made without notice hence the said document could not be relied upon. The lower Appellate Court decreed the suit of the plaintiff-respondent. Hence, the present regular second appeal was preferred by the defendant-appellant. 

It is pertinent to point out here that after filing of the suit, when notice was issued to the defendants, the plaintiff-respondent was directed to deposit 1/5th of the pre-emption amount in a time bound. This direction was not complied with. 

The counsel for the defendant-appellant contended that the Trial Court rightly dismissed the suit holding the sale not to be pre-emptible under Section 17-A of the Land Tenures Act. The Counsel further argued that there was ample evidence on the record to show that the defendant-appellant was a tenant on the suit land prior to the date of sale and on the date of the sale and the sale is not pre-emptible. 

In support of his argument, the counsel has relied upon Hardial Singh & Anr. vs. Mool Chand & Ors. [1985 PLJ 387] to contend that the case is to be decided on preponderance of evidence for and against and it was not necessary that the vendee conclusively proves that he was a tenant on the land under the vendor at the time of sale. Lastly, it was submitted that the right of pre-emption is a weak right and a piratical right which can be defeated by all legal means. 

On the contrary, the counsel for the plaintiff-respondent contended that the defendant-appellant failed to prove that he was a tenant on the suit land prior to the sale and further that the change in the revenue entries was made without notice and hence the same could not be relied upon.  

It was further the contention of the counsel that though as per the Haryana Amending Act, 1995 the right of a co-sharer to pre- empt was extinguished, however, as per the judgment passed by the Supreme Court in Shyam Sunder & Anr. vs. Ram Kumar & Anr. the said amendment was held to be prospective in operation and it did not affect the rights of the parties to the litigation on the date of adjudication of the pre-emption suit and the Trial Court was not required to take into account or give effect to the substituted Section 15 introduced by the Haryana Amending Act.

In this case, after considering these rival submissions, the Court carved out two legal position, the first of which was that as per the law laid down in the Shyam Sunder’s case (supra) the right of the plaintiff-respondent herein to pre-empt the sale survives in as much as the Haryana Amending Act, 1995 to the Punjab Pre-emption Act, 1913 has been held to be prospective in nature, while the second legal position noticed by the Court was that as per Section 17-A of the Land Tenures Act, in case of a tenant on the suit land, the sale of said land has been held to be not pre- emptible.

Before adverting to the facts of the present case, the Court gave a closer look at the law of pre-emption by placing reliance on Shyam Sunder (Supra), Hardial Singh (Supra) and on  Sulleh Singh vs. Sohan Singh [AIR 1975 SC 1957]. From these precedents, the Court held that it is trite that the right of pre-emption is a very weak right and can be defeated by resorting to all legal means necessary for defeating the said right. 

The Court then proceeded to look into the present case, to observed that besides the Khasra Girdawari, there were numerous other documents which proved that the defendant-appellant was a tenant on the suit land prior to the sale in his favour, be it in form of the agreement to sell executed by Smt. Nirmala Devi in favour of the defendant-appellant having a clear recital that the defendant-appellant was a tenant on the suit land or the sales deed in question. The Court also looked into the deposition of witnesses produced by the appellant to prove his case. 

In this regard, the Court again referred to Hardial Singh’s case (supra), wherein it was held that while dealing with a case of pre-emption, the matter has to be decided on preponderance of evidence for and against and it is not necessary that the vendee conclusively proves that he was a tenant on the land in dispute under the vendor at the time of sale.

Significantly, the Court proceeded to make its observations on Order 20 Rule 14 of the Code of Civil Procedure, 1908, which was (although) not argued or raised by the counsel for the parties, but was held to be mandatory in Sulleh Singh’s case (supra). 

In this respect, the Court opined that in the present case, the 1/5th pre- emption money as directed by the Court was not deposited and thereafter the time for depositing the same was extended. The Court added that though a specific issue was framed pertaining to this aspect however, the same was not pressed. 

It was held that the provisions of Order 20 Rule 14 CPC have been held to be mandatory in nature and any default in depositing the pre-emption money would result in dismissal of the suit. Justice Sarin asserted that in the present case the pre-emption amount was not deposited on time as directed and the time was extended, which the Trial Court was not empowered to do. 

Hence, even on the said ground the suit of the plaintiff-respondent ought to have been dismissed, held the Court. Be that as it may, since the said point was neither raised nor argued at any point of time, teh Court did not find necessary to delve into the same any further. 

In view of the law laid down and the above mentioned discussion, the present regular second appeal was allowed. 

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