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Balbir Singh and ors. Vs. Kulwant Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 1249 of 1962
Judge
Reported inAIR1965P& H346
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rule 34(5) ; Punjab Pre-emption Act, 1913 - Sections 4 and 3(5) ; Punjab Pre-emption Act, 1905
AppellantBalbir Singh and ors.
RespondentKulwant Singh and ors.
Cases ReferredMithan Lal v. Chuni Lal
Excerpt:
.....judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - on 21st december, 1954, mohinder singh failed to executed the sale-deed in accordance with the agreement to sell the appellants brought a suit for specific performance of the agreement to sell. 5,500, mentioned in the sale deed according to the plaintiff was excessive and had not been paid or fixed in good faith. 5,500 had been paid and fixed in good faith. 3...........village ramiana district bhatinda. on 21st december, 1954, mohinder singh failed to executed the sale-deed in accordance with the agreement to sell the appellants brought a suit for specific performance of the agreement to sell. in the aforesaid suit a decree was awarded in favour of the appellants on the 19th april, 1958 as per judgment copy of which is exhibit d. w. 8/3. it was ordered that mohinder singh did not execute the sale-deed in compliance with the decree that learned subordinate judge appointed his reader tulsi ram commissioner to execute the sale deed is favour of the appellants. accordingly on 8th march, 1960 tulsi ram executed sale deed exhibit d. w. 8/1 in respect of the land in dispute in favour of the appellants. the sale-deed was also got registered the same day on.....
Judgment:

(1) The question as to whether sake as per sale-deed executed by a commissioner appointed by the Court in favour of a decree-holder an agreement to sell is pre-emption arises for determination on the regular second appeal filed by the defendants Balbir Singh and his three younger brothers against the judgment and decree of learned Additional District Judge Faridkot.

(2) The brief facts of the case are that Mohinder Sigh was the owner of the land in dispute meaning 40 Bighas situated in village Ramiana District Bhatinda. On 21st December, 1954, Mohinder Singh failed to executed the sale-deed in accordance with the agreement to sell the appellants brought a suit for specific performance of the agreement to sell. In the aforesaid suit a decree was awarded in favour of the appellants on the 19th April, 1958 as per judgment copy of which is Exhibit D. W. 8/3. It was ordered that Mohinder Singh did not execute the sale-deed in compliance with the decree that learned Subordinate Judge appointed his Reader Tulsi Ram commissioner to execute the sale deed is favour of the appellants. Accordingly on 8th March, 1960 Tulsi Ram executed sale deed Exhibit D. W. 8/1 in respect of the land in dispute in favour of the appellants. The sale-deed was also got registered the same day On the 7th March, 1961 Kulwant Singh respondent brought the present suit for possession by pre-emption of the land in dispute on the ground that he had a superior right of pre-emption because he was collateral of Mohinder Singh vendor and was also cosharer of the land in dispute. The sale price of Rs. 5,500, mentioned in the sale deed according to the plaintiff was excessive and had not been paid or fixed in good faith.

(3) The suit was resisted by the appellants on the ground that the sale was not pre-emption because it tool place under the order so the Court. The suit was stated to be liable to be dismissed because the appellants were the tenants of the land in dispute at the item of its sale. The appellants maintained that the sale price of Rs. 5,500 had been paid and fixed in good faith. Plea of limitation was also raised.

(4) Following issues were framed in the case:

'1. Whether the plaintiffs has a superior right of per-emption?

2. Is the sale pre-emption?

3. Whether the price was actually paid or fixed in good faith?

4. If issue No. 3 is not proved what was its market value at the date of sale?

5. Whether the suit is within time?

6. Relief?'

The trial court decided issues Nos. 1 and 5 in favour of the plaintiff. Issue No. 2 was decided against the plaintiff. On issue No. 3 the finding was that the sale price of Rs. 5,500/- had been paid and fixed in good faith. In view of finding on issue No. 3 issue No. 4 was held not to arise. As a result of findings on different issues the plaintiff's suit was dismissed.

(5) On appeal the learned Additional District Judge held that the sale in question was sale for the purpose of Pre-emption Act and as such pre-emption. It was also found that the appellants were tenants of land measuring 8 Kanals 7 marlas comprised in Khasra Nos. 899 and 902 out of the entire land in dispute, and that the sale in respect of the aforesaid area of that the sale in respect of the aforesaid area of 8 kanals 7 Marlas of the land worked out to be Rs. 1,145/63 Paise. In the circumstances the appeal was partly accepted and decree for possession by pre-emption of land measuring 31 Kanals 13 Marals was awarded on payment of Rs. 4,354/37 paisa.

(6) The four vendees have now come up in appeal praying that the suit of Kulwant Singh respondent should be dismissed while cross objections have been filed by Kulwant Singh with the prayer that the suit should be decreed in its entirety.

(7) In the appeal filed by Balbir Singh and his younger brothers their learned counsel Mr. Mittal has argued that the sale in question was not perceptible. Reference in this connection has been made to sun-clause (a) of clause (5) of section 3 of the which 'sake' shall not include:

'(a) a sale in execution of a decree for money or of an order of an civil Criminal or Revenue Court or

of a Revenue Officer.'

Section 4 of the Act makes it clear that the right of pre-emption in respect of agricultural land arises only in the case of sales.

(8) Perusal of sub-clause (a) of clause (5) of section 3 of the Act, reproduces above, goes to show that so far as sales in execution of orders of Civil, Criminal or Revenue Court or of Revenue Officers are concerned, they are all exempt from pre-emption. Where however, a sale takes place in execution of a decree, the sale would be not be subject the pre-emption it the sale is in execution of a decree for recovery of money. In case the sale takes place an execution of a decree not for recovery of money but for specific performance the sale would not be immune against a claim for pre-emption. The language of the Punjab Pre-emption Act of 1913 language of the Punjab Pre-emption Act of 1913 in this respect is substantially different from that employed in the Punjab Pre-emption Act of 1905 according to which 'sale shall not include:

'sale in execution of a decree or order of an Civil Criminal or Revenue Court or of a Revenue officer.'

This variation in the language, in which the two definitions were counched was noticed, by Bhide, J in Imam Din v. Feroze Din, 1928 Lah 504, and it was observed:

'This definition (the definition of sale in the Act of 1905)appears to have given rise to some difficulty and in Nawab v. Jawaya, 40 Pun RE 1911 on the wording of the definition a sale made in execution of a decree for specific performance of a contract was held to be not subject to the right of pre-emption. As a result any person could have easily defeated the rights of pre-emptors by first entering into a contract for sale and then obtaining a decree in a suit for specific performance of the same. It appears that the definition was emended in the Punjab Pre-emption Act 1913 to avoid this result and the words. ' for money' were inserted after the word 'decree'. The object of the exemption in section 3(5) Punjab Pre-emption Act 1913 appears to be a exclude those sales which are not made voluntarily but by an order of the Court as every person who chooses to buy the property has the opportunity of bidding for it in the latter case.'

(8a) The question as to whether a suit for pre-emption is maintainable when a sale deed is executed in execution of a decree for specific performance of an agreement to sell arose for determination in a Division Bench case (Shadi Lal and Le Rossignol JJ). Rangi Ram V. Mehar Singh 111 Pun Re 1919 and was answered in the affirmative. It was observed:

'In our opinion the appeal must succeed for the sale was carried out obviously in execution of the decree of the Civil Court and not in execution of an order. Quite apart from the fact that an order between the parties to a Civil suit regarding execution amounts to a decree it is quite clear that the sale was completed in execution of the decree and inasmuch as the decree was not a decree for money the suit to pre-empt is not barred.'

(9) Mr. Mittal, however, contends that the sale deed which was executed in favour of the appellants was not in compliance with the decree for specific performance but in compliance with the order which as made in the proceedings relating the execution of that decree. As such the sale was according to the learned counsel. not in execution of a decree but in execution of an order and therefore not pre-emption. The copy of the order referred to by Mr. Mittal is not on the file but there is mention in the sale deed of order dated 23rd February, 1960 appointing Tulsi ra, Reader of the Court commissioner to execute the sale deed in favour of the appellants. In this connection I am of the view that the sale deed which was executed in favour of the appellants. In this connection I am of the view that the sale deed which was executed in favour of the appellants was essentially in execution of the decree for specific performance of the agreement to sell which has been obtained by the appellants against Mohinder Singh. The mere fact that some order has to be passed in execution of that decree in order to carry out the directions contained in that decree and for obtaining its satisfaction would not go to show that the sale in favour of the appellants of the land in dispute was not in execution of the decree for specific performance.

The sale deed despite the order in execution proceedings would remain none the less a deed executed in compliance with the decree for specific performance. Indeed the sale deed itself recites that there has been a decree for specific performance in favour of the appellants and it was in pursuance of that decree that the sale deed was being executed. In the circumstances the sale in question should be held to have been made in execution of the decree for specific performance and its essential character in that respect cannot be affected or altered because of some ancillary order in execution proceedings to obtain satisfaction of the aforesaid decree.

(10) Assuming of the sake of argument that the sale deed was executed not in compliance with the decree for specific performance but in obedience to the order made in execution proceedings to obtain satisfaction of the decree the sale would still be regarded as one having been made in compliance with a decree. The reason for that is that the order made in execution proceedings to obtain satisfaction of the decree for specific performance would fall under section 47 of the Code of Civil Procedure as one relating to 'execution discharge of satisfaction ' of the decree. Such an order amounts to a decree as defined in clause (2) of section 2 of the Code of Civil Procedure. I am fortified in this conclusion by the observations of the Bench in 111 Pun Re 1919: (AIR 1919 Lah 118) reproduced above.

(11) Mr. Mittal in fairness has referred to a decision a Division Bench (Mehar Singh and Grover JJ) in Har Kishan v. Bhule Ram, R. S. A. No. 223 of 1962 D/- 31-12-1962(Punj). In that case one Chhanga executed an agreement to sell certain land in favour of the appellants. Later on a suit was filed for the specific performance of a the agreement and its was decreed an appeal. An application for execution of that decree was then filed. Chhanga at first was not willing to execute the sale deed but after some orders had been passed in the course of execution proceedings chhanga appeared in Court and expressed his willingness to execute the sale deed. Chhange thereafter executed the sale deed and got it registered. A suit for pre-emption was thereafter brought by the question arose for determination as to whether the sale could be pre-empted. On behalf of the vendee-appellants reliance was placed upon observations in case Mahammad Wazir v. Jahangiri Mal AIR 1949 Lah 72 was distinguishable because the sale made by Chhanga was voluntary. The appeal was consequently dismissed.

(12) The above case if anything supports the contention of the plaintiff respondent in the present case that the sale made in execution of a decree for specific performance of an agreement to sell is not pre-emption. Mr. Mittal has tired to distinguish the above case on the ground that the sale deed in that case was made by Change vendor willingly in compliance with the decree for specific performance while in the present case Tulsi Ram Reader of the Court was appointed commissioner to executed the sale deed. This fact no doubt makes to above case distinguishable but on principle it would in my opinion make no difference whether the sale deed in execution of a decree for specific performance is executed by the vendor himself or by some other person appointed by the Court for the purpose. According to sub-rule (5) of Rule 34 of Order 21 of the Code of Civil Procedure the execution of the document by the party ordered to execute the same. A somewhat similar matter arose in Gopi Nath Das v. Namai charan Das AIR 1951 Cal 551. In the case a claim for per-emption was made executed by the court in execution of a decree for after the refusal of the defendant to carry out a decree deed it does so as the agent of the defendant and the transfer is in fact and law a transfer by the defendant.

(13) Mr. Mittal has lastly relied upon the observation made in AIR 1949 Lah 72 supra. This decision was given by Lahore High Court after partition of the country and as such has no binding force though its reasoning can be relied upon. The decision was also ex parte because no one appeared on behalf of the respondent. The court overruled an earlier decision of Jai Lal J. in Ganga Ram v. Ram Chander consequence of a decree for specific performance was different from a voluntary sale and as such was not pre-emption. The suit in that case was not for preemption but for specific performance and the argument about the sale being pre-emption did not arise directly but was brought in only with a view to defeat the suit for specific performance. Perusal of the judgment goes to show that the earlier Divisions Bench case of 111 Pun Re 19191: (AIR Lah 118) was not even referred to as it does not seem to have been brought to the noise of the Court. For the reasons given above I am in respectful agreement with the view taken by the Bench in Rangi Ram's case 111 Pun Re 1919: (AIR 1919 Lah 118).

(14) Another case upon which reliance has been placed by MR. Mittal is Mithan Lal v. Chuni Lal 50 Pun LR 126: (AIR 1949 Lah 22). In that case the son and nephews of one Amar Nath brought a suit for declaration that he had no power to mortgage his share in a joint house. During the pendency of the appeal a compromise was effected between the parties to which the whole house was to be auctioned by this Court auctioneer under the supervision of the Court. The house was thereafter auctioned was purchased by one Chuni Lal who was the highest bidder. A suit to pre-empt the sale of the house in favour of Chuni Lal and specific finding was given that the sale in favour of Chunni Lal was not in execution of a decree. These facts made the above case distinguishable and in my opinion the appellants can derive no benefit from that.

(15) I accordingly hold that the sale in the present case in favour of the appellants was not absolutely immune from a claim for pre-emption.

(16) In cross objection filed on behalf of Kulwant Singh it has been argued by his learned counsel Mr. Puri that the lower appellate Court was in error in holding that the lower appellate Court was in error in holding that the appellants were tenants of land measuring 8 kanals 7 Marlas comprised in Khansa Nos. 889 and 902. In this respect I find that the statement of Jai Singh Patwari who was examined as D. W. 4 goes to show that the appellants were show in the Khasra Gidawari during the relevant time as the tenants of the land comprised in Khanna Nos. 889 and 902. This is also borne out by the entry in the Khasra Girdawari during the relevant time as the tenants of the land comprised in Khasra Nos. 889 and 902. This is also borne out by the entry in the Khasra Girdawari, copy of which is ground Exhibit D. W 4/ A. In view of that I see no cogent ground to interfere with the finding of the lower appellant Court that the appellants were tenants of the land measuring 8 Kanals 7 Marlas out of the land in dispute.

(17) The result is that both the appeal and the cross-objections fail and are dismissed. In the circumstances of the case, I leave the parties to bear there own costs in appeal and cross-objections.

(18) Appeal dismissed.


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