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Brahm Singh and ors. Vs. Tarsem Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 863 of 1965
Judge
Reported inAIR1973P& H246
ActsPunjab Pre-emption Act, 1913 - Sections 8(2); Constitution of India (Scheduled Castes) Order, 1950
AppellantBrahm Singh and ors.
RespondentTarsem Singh and ors.
Cases ReferredMt. Sant Kaur v. Teja Singh
Excerpt:
.....8 of the punjab pre-emption act, 1913, the governor of punjab is pleased to declare that no right of pre-emption shall exist with respect to urban and village immovable property as well as agricultural land when purchased by any member of the scheduled castes mentioned in part x of the schedule to the constitution (scheduled castes) order, 1950.'but, in the instant case, it is not the sale in favour of barru, which was covered by exhibit d/6, that was being pre-empted by the plaintiffs. even on being so impleaded, he will not have nay right to defeat the suit by reason of his own qualifications which gave him an equal or better right of pre-emption qua the original sale. 11. there is no merit in this contention as well. as i have already said the plaintiffs were pre-empting the..........the village were finished. on 5th october, 1962, vide exhibit d/4, chaghar singh executed another sale-deed, by which he sold 25 kanals 13 marlas being 1/3rd share in 77 karnals, covered by certain killa numbers mentioned in that deed, which was allotted in consolidation in lieu of the original joint holding to brahm singh for rs. 1500/-. the sale price mentioned in exhibits d.1 and d.2 was given credit for in this amount of rs. 1500/- and the balance of rs. 750/- was paid by the vendee at the time of the execution of exhibit d/4. on 3rd may, 1963, by deed exhibit d/5, brahm singh and milkhi ram brother of chaghar singh sold 3 kanals and 5 marlas out of 25 kanals 13 marlas comprised in khasra no 87/16 (it should be killa no. 87/16), which was one of the killa numbers covered by exhibit.....
Judgment:

1. Chaghar Singh and his two brothers Kartar Singh and Milkhi Ram were owners in equal shares of a joint Khata, consisting of agricultural land measuring 91 Karnals 18 Marlas, situate in village Sandhwal, District Hoshiarpur. After consolidation, this land became 77 Karnals. On 16th August, 1958, by a registered deed, Exhibit D/1, Chaghar Singh sold land measuring 7 Karnals 14 marlas, being 1/3rd of 23 Kanals 1 Marla, comprised in certain Khasra numbers mentioned in that deed out of the joint holding in favour of Brahm Singh for Rs. 250/-. Similarly, on 27th January, 1960, vide Exhibit D/2, he sold another 22 Kanals 19 Marlas, being 1/3rd of 68 Kanals 19 Maralas comprised in the Khasra numbers mentioned in the deed, out of the same joint holding, to the same vendee for Rs. 500/-. In the meantime, consolidation proceedings, which were going on in the village were finished. On 5th October, 1962, vide Exhibit D/4, Chaghar Singh executed another sale-deed, by which he sold 25 Kanals 13 Marlas being 1/3rd share in 77 Karnals, covered by certain Killa numbers mentioned in that deed, which was allotted in consolidation in lieu of the original joint holding to Brahm Singh for Rs. 1500/-. The sale price mentioned in Exhibits D.1 and D.2 was given credit for in this amount of Rs. 1500/- and the balance of Rs. 750/- was paid by the vendee at the time of the execution of Exhibit D/4. On 3rd May, 1963, by deed Exhibit D/5, Brahm Singh and Milkhi Ram brother of Chaghar Singh sold 3 Kanals and 5 Marlas out of 25 Kanals 13 Marlas comprised in Khasra No 87/16 (it should be Killa No. 87/16), which was one of the Killa Numbers covered by Exhibit D/4, to Arjan Singh and his five brothers for Rs. 1000/-. On the same day another sale deed, Exhibit D/6, was executed by Milkhi Ram and Brahm Singh regarding 10 Marlas, out of Killa No. 87/16, to one Baru for Rs. 200/-. On 4th October, 1963, Tarsem and two others, sons of Milkhi Ram, brought a suit for pre-emption regarding the land covered by the sale-deed, Exhibit D/4, on the ground that they had a superior right of pre-emption, being the nephews of the vendor, Chaghar singh. It was alleged by them that the sale was for Rs. 1000/- and not Rs. 1500/- as mentioned in the deed. In the suit, the pre-emptors impleaded Arjan Singh and his five brothers vendees in Exhibit D/5 and Barru, vendee in Exhibit D/6.

2. The suit was resisted by the vendees on a number of pleas, but in the present appeal we are only concerned with two of them-(i) that the suit was barred by limitation and (ii) that the sale in favour of Barru evidenced by Exhibit D/6 was not pre-emptible, the vendee being a member of the scheduled caste.

3. The trial Judge decreed the suit except regarding 10 Marlas of land, which was sold to Barru. The suit was held not to be barred by limitation. The sale in favour of Barru was found to be not pre-emptible, because of the notification issued on 2nd/3rd February, 1962, by the Governor of Punjab in exercise of the powers conferred on him under Section 8(2) of the Punjab Pre-emption Act, declaring that no right of pre-emption would exist with respect to the agricultural land, when the same was purchased by any member of the scheduled castes mentioned in Part X of the Schedule to the Constitution (Scheduled Castes) Order, 1950,. Admittedly, Barru was a member of the Scheduled castes mentioned in the said schedule.

4. Against this decision, the vendees went in appeal before the learned Senior Subordinate Judge, Hoshiarpur, while the plaintiffs filed cross-objections, praying that the suit should have been decreed in its entirety. The lower appellate Court dismissed the appeal, but accepted the cross-objections with the result that the plaintiffs' suit was decreed in toto. The defendants have come here in Second appeal.

5. The first argument raised by the learned counsel for the appellants was that the finding of the lower Appellate Court that the sale in favour of Barru was also pre-emptible, was contrary to law and the decision of the trial Court on this point was correct.

6. It is common ground that Barru is a member of the scheduled caste. If somebody filed a suit for pre-emption regarding the sale in his favour, that suit would have been dismissed, in view of the notification issued by the Governor of Punjab on 2nd/3rd February, 1962, under Section 8(2) of the Punjab Pre-emption Act, 1913, which reads:

'In exercise of the powers conferred by Sub-Section (2) of Section 8 of the Punjab Pre-emption Act, 1913, the Governor of Punjab is pleased to declare that no right of pre-emption shall exist with respect to urban and village immovable property as well as agricultural land when purchased by any member of the scheduled castes mentioned in Part X of the Schedule to the Constitution (Scheduled Castes) Order, 1950.'

But, in the instant case, it is not the sale in favour of Barru, which was covered by Exhibit D/6, that was being pre-empted by the plaintiffs. As I have already stated above, they had filed the suit for pre-emption regarding the sale made on 5th October, 1962, evidenced by Exhibit D/4.

7. It was argued by the learned counsel for the appellants that out of the land mentioned in Exhibit D/4, some land had been sold to Barru under Exhibit D/6, and therefore, that portion of the land could not be pre-empted in view of the notification, referred above.

8. As I have said, it is not the sale covered by Exhibit D/6, that was being pre-empted by the plaintiffs. If after the sale evidenced by Exhibit D/4, the vendees sold a portion of the land purchased by them to a third party within one year, and that party had no right of pre-emption, with the result that it was not in exercise of his right of pre-emption that the said transfer was made to him then the subsequent vendee would have only such defences open to him in a suit for pre-emption, which were available to the vendees of the sale, which was being actually pre-empted. It was so held in a Full Bench decision of the Lahore High Court in Mt. Sant Kaur v. Teja Singh, AIR 1946 Lah 142 (FB), where it was observed:

'However, where the subsequent transferee has lost the means of making use of the coercive machinery of the law to compel the vendee to surrender the original bargain to him a re-transfer of the property in the former's favour cannot be looked upon as anything more than a voluntary transfer in the former's favour of such title as he had himself acquired under the original sale. Such transfer has not the effect of substituting the subsequent transferee in place of the vendee in the original bargain. Such a transferee takes the property only subject to the result of the suit. Even if he is impleaded as a defendant in such suit, he cannot be regarded as anything other than a representative in interest of the original vendee, having no right to defend the suit except on the pleas that were open to such vendee himself. He not being entitled to be regarded as a party to the original sale, which is being pre-empted, it is not against him but against the original vendee, through and under whom he claims, that the pre-emptor has, in order to succeed, to prove a superior pre-emptive right. The comparison, even at the date of the decree, has to be between the status of the plaintiff and that of the original vendee and not between the plaintiff and the subsequent transferee. It is thus obvious that it can make no real difference to the position of such transferee if he is impleaded as a party to the pre-emption suit pending which the property in suit has been transferred to him. Even on being so impleaded, he will not have nay right to defeat the suit by reason of his own qualifications which gave him an equal or better right of pre-emption qua the original sale. If the plaintiff's right of pre-emption is found to be superior to that of the original vendee at all the material times, the circumstances that by the time the suit comes up for final decision, but subsequent to the institution of the suit and after the expiration of the period of limitation prescribed for a suit to enforce a right of pre-emption, the property has changed hands by reason of a re-transfer by the vendee will not affect his right to a decree of his claim, irrespective altogether of the qualifications possessed by the subsequent transferee who cannot defeat the plaintiff's suit on the ground of his own pre-emptive right in respect of the original sale being equal or superior to that of the former.'

9. In the instant case, as I have already said, Barru had no right of pre-emption regarding the sale covered by Exhibit D/4, and the sale made in his favour was not in exercise of his right of pre-emption regarding the said sale. He, therefore, by virtue of the sale deed, Exhibit D/6, stepped into the shoes of his vendors and all the defences that were available to them, would be open to him and nothing more. He could not urge that the sale in his favour was not pre-emptible, because of the above mentioned notification. This plea could be available to him only if somebody was pre-empting the sale in his favour evidenced by Exhibit D/6, and that was not the position in the present case. I would, therefore, agreeing with the lower Appellate Court, hold that the sale in favour of the Barru was also pre-emptible, in the circumstances of this case.

10. Learned counsel then submitted that the decision of the Courts below on the question of limitation was not in accordance with law and in that connection, he contended that the sale of the land in dispute had actually been effected by the sale-deeds, Exhibits D/1 and D/2 and if limitation was to be counted from the dates of those two sale-deeds, then the present suit filed on 4th October, 1963, would be obviously barred by time.

11. There is no merit in this contention as well. As I have already said the plaintiffs were pre-empting the sale, covered by Exhibit D/4, which took place on 5th October, 1962. Admittedly, if the limitation is counted from that date, the suit is well within time. It could not be denied by the learned counsel that Exhibit D/4 was, in fact a sale-deed, by which the lands, referred to above, had been sold by Chaghar Singh in favour of Brahm Singh for Rs. 1500/-. It is true that in this sale-deed, reference was made to the earlier two sale-deeds Exhibits D/1 and D/2, but that was for a different purpose, namely, for the adjustment of the sale-price. The sale consideration mentioned in Exhibits D/1 and D/2 was adjusted in the present sale-price and the balance of Rs. 750/- was paid when Exhibit D/4 was executed. It cannot, therefore, be said that Exhibit D/4 was not a sale-deed and the real sale-deeds were Exhibits D/1 and D/2, As a matter of fact, it is not even clear as to whether the same land, which was mentioned in Exhibits D/1 and D/2, was being sold by Exhibit D/4. In these circumstances, it is not possible to hold that the present suit was barred by limitation.

12. In view of what I have said above, this appeal fails and is dismissed. In the circumstances of this case, however, I will leave the parties to bear their own costs in this Court as well.

13. It was urged before me that the vendees had made certain constructions on the land sold. They are given three months' time to remove them.

14. Appeal dismissed.


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