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Tehoo Ram and ors. Vs. Dalip Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 271 of 1949
Judge
Reported inAIR1953P& H128
ActsPunjab Pre-emption Act, 1913 - Sections 21A
AppellantTehoo Ram and ors.
RespondentDalip Singh and anr.
Appellant Advocate K.C. Nayar, Adv.
Respondent Advocate D.K. Mahajan, Adv.
DispositionAppeal dismissed
Cases ReferredGhulam Qadir v. Ditta
Excerpt:
.....orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against..........1-1-1947, dalip singh and tega instituted civil suit no. 320 of 1947 for possession of the land in suit by pre-emption on payment of rs. 3,000/-.3. defendants nos. 2 to 7 challenged the plaintiffs' right to pre-empt. in decreeing the suit the court of first instance found that the plaintiffs had a superior right of pre-emption as against the vendees. admittedly, dalip singh and tega plaintiffs and defendants nos. 2 to 6 are collaterals of trikhu in equal degree. sunkoo defendant no. 7 was a stranger and defendants nos. 2 to 6 having associated with sunkoo sank to the level of sunkoo on the date of the sale.4. from the decree passed by the court of first instance on 4-3-1948, defendants appealed.5. in the appellate proceedings, the sole point that arose for decision was whether the.....
Judgment:

Harnam Singh, J.

1. In order to appreciate the points of law arising in Regular S. A. No. 271 of 1949, the facts of the case may be set out in some detail.

2. On 30-1-1947, Trikhu sold the lard in suit to defendants Nos. 2 to 7 for Rs. 3,000/-. On 1-1-1947, Dalip Singh and Tega instituted civil suit No. 320 of 1947 for possession of the land in suit by pre-emption on payment of Rs. 3,000/-.

3. Defendants Nos. 2 to 7 challenged the plaintiffs' right to pre-empt. In decreeing the suit the Court of first instance found that the plaintiffs had a superior right of pre-emption as against the vendees. Admittedly, Dalip Singh and Tega plaintiffs and defendants Nos. 2 to 6 are collaterals of Trikhu in equal degree. Sunkoo defendant No. 7 was a stranger and defendants Nos. 2 to 6 having associated with Sunkoo sank to the level of Sunkoo on the date of the sale.

4. From the decree passed by the Court of first instance on 4-3-1948, defendants appealed.

5. In the appellate proceedings, the sole point that arose for decision was whether the plaintiffs had a superior right of pre-emption as against the vendees.

6. In deciding the appeal the Court found that the plaintiffs had a right of pre-emption superior to the vendees. In the result the appeal failed and was dismissed with costs.

7. From the decree passed in appeal the defendants have come up in further appeal to this Court under Section 100, Civil P. C.

8. In arguments Mr. K. C. Nayar pointed out that Sunkoo defendant No. 7 who was a stranger on the date of sale sold the property purchased by him to defendants Nos. 2 to 6 on the 3-2-1948. As stated above, civil suit No. 320 of 1947 was instituted on 1-7-1947. Defendants Nos. 2 to 6 having associated with Sunkoo sank to the level of Sunkoo on the date of the sale. The question is whether they can be permitted to improve their status by the sale made in their favour on 3-2-1948.

9. Section 21A, Punjab Pre-emption Act, provides:

'Any improvement, otherwise than through inheritance or succession, made in the status of a vendee defendant after the institution of a suit for pre-emption shall not affect the right of the pre-emptor plaintiff in such suit.'

10. In my judgment, the improvement made in the status of defendants Nos. 2 to 6 after the institution of the suit for preemption cannot affect the right of the pre-emptors in that suit. For authority on this point -- 'Tej Ram v. Puran Chand', L. P. A. No. 76 of 1949, D/- 16-4-1951, may be seen.

11. But it is said that the sale was divi-sible inasmuch as the share of Sunkoo was specified in the sale deed, Exhibit D. 2.

12. In the sale deed, Exhibit D. 2, the share of Sunkoo in the land purchased was specified, but the purchase money which was to be paid by Sunkoo was not specified. In -- 'Ghularn Qadir v. Ditta', AIR 1945 Lah 184, Abdur Rahman J. (Harries C. J. and Abdul Rashid J. concurring) said :

'It would make no difference if the shares of the various vendees, if they happen to be more than one, were specified as long as the sale was for a consolidated price and it was open to the vendor to call upon all the intending purchasers to perform their contract jointly and to recover the whole of the price from any one of them. Specification of shares in such a case could not make such a contract of sale to be divisible or to consist of a number of transactions embodied in a single document. The position might have been materially different if the price of all the specified shares had also been separately fixed and the vendor would have been bound to recover the price mentioned for each share from each vendee separately.'

Indisputably, the present case falls within the rule laid down in AIR 1945 Lah 184.

13. Basing himself upon -- 'Ram Nath v. Badri Narain', 19 All 148, Mr. K. C. Nayar urges that the specification of shares without specification of the purchase price paid by the different vendees makes the sale to be divisible for purposes of pre-emption.

14. Clearly -- 'Ram Nath v. Badri Narain', 19 All 148 supports the argument raised by the appellants in the present case. In -- 'Tota Ram v. Kundan', AIR 1928 Lah 784, Shadi Lal C. J. (Johnstone J. concurring) pointed out that the view taken by the Allahabad High Court that specification of shares without specification of the purchase price paid by the different vendees makes the transaction a divisible one has not been adopted by the Punjab Courts. In deciding the point raised I prefer to rely upon -- 'Ghulam Qadir v. Ditta', AIR 1945 Lah 184 FB.

15. No other point arises in these pro-ceedings.

16. In the result I dismiss with costsRegular S. A. No. 271 of 1949.


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