1. This second appeal has been filed by Mahesh Pal and Danesh Pal, defendant 1 and 2, against the judgment and decree of the Additional District Judge, Faridabad, D/- 9-2-1982.
2. Briefly, the facts are that Sukhi defendant 3 along with Rambula, Tek Chand and Chhida was co-sharer and in possession of agricultural land bearing khewat No. 69, Khasra Nos. 37/8(8-0), 30/12(3-8), 30/13(8-0). 30/14/1(5-0), 30/18(8-0), 30/19(2-18), 36/23(7-9), 36/24(4-0), 36/26(0-12), 37/41(1-0), 37/4/2(5-11), 37/6(1-13), 37/7/1(7-12), 37/7/2(0-7) and 37/14(8-0), situated within the revenue limits of village Sotai. Tehsil Ballabhgarh, District Faridabad. The plaintiffs had purchased khasra No. 37/8 out of the above joint khewat of the co-sharers from Rambula, Tek Chand and Chhida vide registered sale deed D/- 10-6-1977. Thereafter, Sukhi sold 11/72 share out of the above khewat to Mahesh Pal and Danesh Pal defendant 1 and 2 for a consideration of Rs. 22,000/- vide sale deed D/- 29-3-1979. The plaintiffs claimed that they were co-sharers in the land which was sold by Sukhi defendant in favour of defendant 1 and 2, and, therefore, had a superior right of pre-emption. They also challenged the consideration. However, this is not relevant for the purpose of deciding the appeal.
3. Defendant 1 and 2 contested the suit and controverted the allegations of the plaintiffs. They inter alia pleaded that the plaintiffs were not co-sharers in the khewat as they had purchased a specific khasra number from Rambula etc. and, therefore, they had no superior right of pre-emption. Several other pleas were taken by them but they do not survive in this appeal.
4. The learned trial Court held that the plaintiffs were not proved to be co-sharers in the khewat in dispute at the time of sale and, therefore, they had no superior right of pre-emption. In view of the said finding, it dismissed the suit of the plaintiffs. On appeal, the Additional District Judge, Faridabad, reversed that finding and held that the plaintiffs has become co-sharers in the joint khewat vide sale deed dated 10th June, 1977, and, therefore, they were entitled to pre-empt the sale. Consequently, he accepted the appeal and decreed the suit of the plaintiffs for possession by pre-emption on payment of Rs. 22,000/- less 1/5th pre-emption money already deposited, plus stamp charges of Rs. 2,200/- as well as registration charges of Rs. 233/- . Defendants 1 and 2 have come up in second appeal to this Court.
5. The only question that arises for determination is as to whether the appellants by purchasing khasra No. 37/8 out of khewat No. 69 from Rambula etc., vide sale deed Dt. 10th June, 1977 became co-sharers in the khewat. The learned counsel for the appellants has vehemently contended that by purchasing Khasra No. 37/8 the plaintiff-respondents did not become co-sharers in Khewat No. 69 in which the said Khasra number was situated. In support of his contention, he places reliance mainly on a Full Bench judgment of this Court in Lachhman Singh v. Pritam Chand, (1970) 72 Pun LR 341 : (AIR 1970 Punj 304). On the other hand, Mr. Gour has argued that by purchasing the said Khasra number, they had become co-sharers in Khewat No. 69, and, therefore, they had superior right of pre-emption. He has referred to one Full Bench judgment of the Court in Bhartu v. Ram Sarup, 1981 Pun LJ 204 and another Full Bench judgment in Jammu and Kashmir High Court in Jabar Bhat v. Mst. Ashmi, AIR 1972 J & K 28. He further urges that in view of the observations in the two Full Benches, it cannot be said that the case referred to by the learned counsel for the appellants was correctly decided.
6. I have heard the learned counsel at a considerable length and given due consideration to their arguments. The question is very ticklish and in order to decide the same, it will be necessary to notice in some detail the Full Bench cases referred to by them. In Lachhman Singh's case (AIR 1970 Punj 304)(supra), one Harinder Singh co-sharer sold 48 kanals 2 marles of land to the plaintiffs vide sale deed dated 20-8-1960. The description of the land given by him in the sale deed was 46 kanals and 12 marles out of 186 kanals and 8 marles comprising of Khewat No. 132/146, Rectangle No. 6, Killa Nos. 16 and 25 and Rectangle No. 13, Killa Nos. 1 to 19 and 22 to 26, one-fourth share, and 1 kanal 10 marles out of 7 kanals 10 marles comprising of Rectangle No. 13 Killa No. 20, one-fifth share, vide jamabandi 1952-53. In the jamabandi 1960-61, the above Rectangle No. 6 was included in Khewat No. 171 and Rectangle No. 13 in Khewat No. 172. On 2-2-1965, Ajmer Singh, another co-sharer, sold to Lachhman Singh defendant 103 kanals and 8 marles of land out of Rectangle No. 16, Khewat Nos. 171 and 172 of the jamabandi 1960-61. The plaintiffs instituted a suit for possession by pre-emption regarding sale in favour of Lachhman Singh vended on the ground that they had become co-sharers of the land in dispute. The first appellate Court took the view that by reason of sale dated 20-8-1960, the plaintiffs had become co-sharers in Khewat No. 171-172 and consequently it decreed the second appeal to this Court. Mehar Singh, C. J. speaking for the Full Bench observed as follows (at p. 309):--
'............. the plaintiffs not having purchased a share of the whole of the joint land of the original three co-sharers and having only purchased a share of defined Killa number of defined rectangles, that is to say rectangles 6 and 13, they obviously, in the terms of the sale deed, do not have their rights extending beyond the land of which share has been sold to them. In other words, while they have become joint owners or co-sharers of the land of rectangles 6 and 13 with the original co-sharers, they do not become co-shares with them in the other or the remaining joint land of those three original co-sharers.'
The facts of the present case are similar and therefore the above observations will apply to it.
7. Mr. Gour has placed reliance on Bhartu's case (1981 Pun LJ 204)(supra) which was decided by another Full Bench. In that case, the following question was referred to the Full Bench :--
'Whether the sale of a specific portion of land described by particular Khasra numbers by a co-owner out of the joint Khewat would be a sale of share out of the joint land and pre-emptible under S. 15(1)(b), Punjab Pre-emption Act?'
Before referring to the observations of the learned Bench it will be useful to refer to the facts which led to the controversy. Ram Chander sold land measuring 21 squares yards out of 4 kanals 2 marles bearing Khasra No. 99/4/2. Khatauni No. 204 and Khewat No. 100 to Bhartu appellant by a registered sale deed dated 19-5-1966 for a consideration of Rs. 300/- . Ram Sarup claiming himself to be a co-sharer in the Khewat filed a suit for possession of the said land by way of pre-emption. The trial Court decreed the suit and the first Appellate Court affirmed that decree. The correctness of that judgment and decree was challenged in the second appeal on the ground that the sale being of a portion of specific khasra and not of share out of joint land, no right of pre-emption was available to the plaintiff-respondent as a co-sharer in Khewat. The learned Full Bench answered the question in the affirmative and held that sale of specific portion of land described by particular Khasra numbers by a co-owner out of the joint Khewat would be a sale of share out of joint land Pre-emption Act. While arriving at the conclusion the learned Bench referred to Lachhman Singh's case (AIR 1970 Punj 304)(supra) and distinguished the same in the following words:--
'The question involved in Lachhman Singh's case (supra)(Full Bench) was as to whether the purchaser of a specific portion of some killa numbers in two rectangles would become a co-sharer in the Khewat consisting of several other rectangles and would be entitled to pre-empt the sale of land out of the rectangles other than in which he became owner by the said purchase. On these facts it was held that such a purchaser does not become a co-sharer in the Khewat and, therefore, had no right to pre-empt the sale. The proposition laid down by the Full Bench has no direct bearing on the question whether the sale of specific Khasra number out of a Khewat would be a sale of share out of the joint land or not and the answer to this question, in our view, depends on the inter se rights of the co-shares in the joint Khewat and the nature in law of the sale of a specified portion of the joint holding.'
From the above observations, it is clear that the Full Bench distinguished Lachhman Singh's case on facts and did not strike a note of discord with that. It is also relevant to point out that the Bench highlighted the ratio in Lachhman Singh's case (supra) and came to the conclusion that the propositions in two cases were different. Mr. Gour also referred to in extenso from Jabar Bhat's case (AIR 1972 J & K 28)(supra). It is true that the learned Bench has not agreed with the ratio in Lachhman Singh's case (supra). However, it is not possible for me to take a different view, especially when that view had not been doubted by the learned Full Bench in Bhartu's case (supra).
8. Now it is to be seen how the ratio of Lachhman Singh's case (supra) is applicable to the case in hand. Here the plaintiffs have purchased land from Rambula et cetera co-sharers in Rectangle No. 37 whereas the defendants purchased land from Sukhi another co-sharer in Rectangle Nos. 30, 36, 37. Applying the principle laid down in Lachhman Singh's case (supra) in Rectangle No. 37 comprised in Khewat No. 69 only and, therefore, they have a superior right of pre-emption regarding land sold by Sukhi in Rectangle No. 37 i. e. 11.72 share in Killa Nos. 4/1(1-0) 4/2(5-11), 6(1-13), 7/1(7-12), 7/2(0-7) and 14(8-0). It is well settled that if the plaintiff has a right of pre-emption regarding part of the land sold, he is entitled to a decree qua that part, on payment of proportionate price.
9. Consequently, I partly accept the appeal, modify the decree of the 1st Appellate Court and decree the suit of the plaintiffs qua 11/72 share in Killa Nos. 4/1(1-0), 4/2(5-11), 6(1-13), 7/1(7-12), 7/2(0-7) and 14(8-0) of Rectangle No. 37 no payment of proportionate sale price and stamp and registration charges. No costs.
10. Appeal partly allowed.