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Molu Ram Amar Singh Vs. Saroj Kumari - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberReview Appln. No. 11/C of 1972 in Civil Regular Second Appeal No. 641 of 1965
Judge
Reported inAIR1973P& H265
ActsPunjab Pre-emption Act, 1913 - Sections 15(1)
AppellantMolu Ram Amar Singh
RespondentSaroj Kumari
Cases ReferredMoti Ram v. Bakhwant Singh
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..........section 15(1)(c) of the punjab pre-emption act, 1913, she could pre-empt only 1/5th share in the land sold and no more. this, in my opinion, is a sufficient ground for reviewing my earlier judgment dated 3rd february, 1972.5. i would, therefore, accept this application and modify my judgment dated 3rd february, 1972, by which i had affirmed the decision of the lower appellate court, which had allowed possession of 2/5th share in the property to the pre-emptor. the result is that saroj kumari would get a decree for 1/5th of the property in suit on payment of rs. 1,500/- and proportionate costs of registration and conveyance charges. this amount if not already paid to the vendee, should be deposited in court on or before 6th november, 1972. if that is not done the suit will stand.....
Judgment:

1. This is an application under Order 47, Rule 1, Code of Civil Procedure, by Molu Ram praying that I should review my judgment dated 3rd February, 1972, by which I had dismissed his appeal.

2. In 1963, Ram Parkash, his brother Ash Karan, his sisters Shrimati Isher Devi and Daya Wanti and his mother Shrimati Ram Bai sold the land in dispute, situate in Hansi, District Hissar to Molu Ram for Rs. 7,500/-. Saroj Kumari minor daughter of Ram Parkash, brought a suit for pre-emption, through her mother Shrimathi Satya Wanti, alleging that she had a preferential right to purchase this property on the ground of her relationship with Ram Parkash, one of the vendors, as against the vendee, who was a stranger. This suit was dismissed by the trial Court, but on appeal, however, the decision of the trial Judge was reversed and Saroj Kumari was given a decree for possession of the land to the extent of 2/5th share. Thereafter Molu Ram came here in second appeal. By my judgment dated 3rd February 1972, I rejected his appeal.

3. The applicant prays that even if the allegations made by the plaintiff are accepted, she would be entitled to the possession of only 1/5th share in the property and not 2/5 as held by the lower Appellate Court.

4. It is true that this point was not argued before me when I decided this case. But the error pointed out by the applicant seems to the quite apparent on the record. Previously, a Division Bench of this Court had taken the view that if a pre-emptor had a right to pre-emption even qua a share in the property sold, he or she could pre-empt the entire bargain. This view was, however, reversed by a Full Bench of this Court in Moti Ram v. Bakhwant Singh, (1967) 69 Pun LR 1041=(AIR 1968 Punj 141)(FB), wherein it was held that the right of pre-emption was limited to the extent of the pre-emptor's right. he could not claim the entire property sold on the basis of his relationship, when it was found that he was not related to all the vendors. He could pre-empt only that portion of the property regarding which his right of pre-emption existed. In the instant case, five persons as already mentioned above, had sold the land in dispute and Ram Parkash owned 1/5th share therein. Saroj Kumari, who was his minor daughter had a right of pre-emption qua her father's share in the property, that is 1/5th. Thus, under Section 15(1)(c) of the Punjab Pre-emption Act, 1913, she could pre-empt only 1/5th Share in the land sold and no more. This, in my opinion, is a sufficient ground for reviewing my earlier judgment dated 3rd February, 1972.

5. I would, therefore, accept this application and modify my judgment dated 3rd February, 1972, by which I had affirmed the decision of the lower Appellate Court, which had allowed possession of 2/5th share in the property to the pre-emptor. The result is that Saroj Kumari would get a decree for 1/5th of the property in suit on payment of Rs. 1,500/- and proportionate costs of registration and conveyance charges. This amount if not already paid to the vendee, should be deposited in Court on or before 6th November, 1972. If that is not done the suit will stand dismissed. The parties are, however, left to bear their own costs throughout.

6. Review allowed.


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