Punjab Pre-emption Act, 1913:ss. 4, 15, 19, 20 , 21 – Punjab Land Revenue Act, 1887 – ss. 118, 121, 123 – Right of pre-emption – Suit for possession of the suit lands by the respondent against the appellants-buyer, on the ground that he as a co-sharer in the joint khewat along with the owner-vendor had a superior right to preempt the sales, and that he was not put to any notice of sale of the suit lands to the appellants by the owner-vendor – Dismissed by the trial court on the ground that khewat had remained no more joint as per the order passed by the Revenue Officer in partition matter filed during the pendency of the suits – First appeal also dismissed – However, the High Court allowed the appeals on the ground that on the date of the passing of the decree, no instrument of partition was drawn by the Revenue Officer, and thus, the joint status of the parties had not come to an end and respondent had not lost his superior right of pre-emption – On appeal, held: Plaint was loosely drafted, the respondent neither pleaded as to how he was the cosharer, nor impleaded the owner of the suit lands, with whom he claimed to be the co-sharer – Once the decision on the property to be divided and on the mode of partition is taken by the Revenue Officer u/s.118, the joint status of the parties would stand severed on the date of such decision, subject to the decision in appeal if any – Consequential action of drawing an instrument of partition would follow thereafter – Thus, merely because the instrument of partition was not drawn, it could not be said that the partition was not completed or that the joint status of the parties was not severed – Joint status of the parties came to an end, when the Assistant Collector passed the order and when the same was confirmed by the Collector – Trial court and the appellate court rightly held that the respondent did not possess the status of co-sharer on the date of decree and that his right of pre-emption had not survived till the date of passing of the decree in the suits – Thus, the order passed by the High Court quashed and set aside.
Pre-emption: Right of pre-emption – General principles – Explained.
Code of Civil Procedure, 1908:
Ord. VI r.2(1) – Cardinal rule of pleadings – Reiterated. Ord. I r.10 – Necessary party/ proper party – Non-impleadment of. Allowing the appeals, the Court
HELD: 1.1 In a very loosely drafted plaint, the plaintiff had neither pleaded as to how he was the cosharer, nor had he impleaded the said JS, the owner of the suit lands, with whom he claimed to be the co-sharer, and who had sold the suit lands to the defendants and Others. It is needless to say that in a suit for pre-emption, the vendor i.e., the owner of the suit land who had allegedly not given any notice of sale to the plaintiff as required to be given under Section 19 of the Pre-emption Act and against whom the right to pre-empt the sale is claimed would be a proper party if not a necessary party, for a complete and final adjudication on the issues involved in the suit. When a right to pre-empt the sale was claimed by the plaintiff JS as a co-sharer in the lands along with the owner , alleging that the mandatory provisions contained in Section 19 i.e., for giving notice to the pre-emptor, was not complied with by the owner or seller JS, his presence as the party defendant was desirable along with the other defendants and Others, to effectively and finally decide the disputes between the parties. Though, Order I, Rule 9 states that no suit shall be defeated by reasons of the misjoinder or non-joinder of parties, care must be taken by the court to ensure that all the parties, be it the plaintiff or the defendant, whose presence is necessary for complete and final adjudication on the issues involved in the suit, are before the court. That is the reason why the courts are empowered to strike out or add parties, at any stage of the proceedings as per Order I, Rule 10, C.P.C. [Paras 12, 13][577F-G; 578-A-C]
1.2 Having regard to the absolutely sketchy and loosely drafted plaint in the instant case, the Court is tempted to regurgitate the basic and cardinal rule of pleadings contained in Order VI, Rule2(1) of the Code, according to which every pleading (i.e., plaint or written statement) has to contain a statement in concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be. Of course, the pleading need not contain the evidence by which such material facts are to be proved, nonetheless the facts necessary to formulate a complete cause of action i.e., the material facts must be stated. Omission of a single material fact would lead to an incomplete cause of action and in that case, the statement of claim would become bad in the eye of law. [Para 14][578-D-F]
1.3 Apart from the fact that the right of pre-emption is very weak right and capable of being defeated by all legitimate methods, the pre-emptor must establish that he had the right to pre-empt on the date of sale, on the date of the filing of the suit and on the date of the passing of the decree by the Court of the first instance. The pre-emptor or the claimant-plaintiff who claims the right to pre-empt the sale on the date of sale, has also to prove that such right continued to subsist till the passing of the decree of the first court. If the claimant-plaintiff loses that right or the vendee improves his right equal or above the right of the claimant before the adjudication of the suit, the suit for preemption would fail. [Para 17][579-G; 580-A-B]
1.4 It is difficult to subscribe the view taken by the High Court in the impugned order that since no instrument of partition was drawn on the date of passing of the decree by the trial court, the joint status of the parties had not come to an end. Having duly considered the provisions contained in the Punjab Land Revenue Act and also the Haryana Land Records Manual, it clearly emerges that as per Section 118 of the Land Revenue Act, when there is a question as to the property to be divided, or the mode of making a partition, the Revenue Officer after such inquiry as he deems necessary, is required to record an order stating his decision on the question and record his reasons for the decision. [Para 26][589-G; 583-A-B]
1.5 Section 121 states that when the partition is completed, the Revenue Officer shall cause an instrument of partition to be prepared, and the date on which the partition is to take effect to be recorded therein. If the said provision contained in Section
121 is closely read, it clearly appears that it deals with the procedure to be followed by the Revenue Officer, after the partition is completed. Meaning thereby, the Revenue Officer after the Partition is completed, has to cause an instrument of partition to be prepared and record therein the date on which the partition is to take effect. When the inquiry as contemplated in Section 118 on the question as to the property to be divided, or the mode of making partition is made by the Revenue Officer, and an order stating his decision on the question along with the reasons for such decision is passed, the partition is deemed to have completed, subject to the decision of appeal that may be preferred against such order as contemplated in sub-section 2 of Section 118. Section 117 of the Punjab Land Revenue Act confers discretion upon the Revenue Officer to decide the question as to the title in any property of which the partition is sought, either by himself or to refer the question to be determined by the competent court. Thus, the jurisdiction of the Revenue Officer in the cases of partition is concurrent with that of the civil court. Therefore, for the purpose of interpreting Section 121, the Court can safely draw an analogy from the provisions contained in Order XX, Rule
18 C.P.C. which pertain to the procedure to be followed on the passing of the decree for the partition of the property. [Paras 27 and 28][583-D-H]
1.6 If the said analogy is applied to the provisions contained in the Punjab Land Revenue Act pertaining to the Partition, when a decision is taken by the Revenue Officer under Section 118 on the question as to the property to be divided and the mode of partition, the rights and status of the parties stand decided and the partition is deemed to have completed. At this stage, such decision is required to be treated as the “decree”. The consequential action of preparing the instrument of partition as contemplated in Section 121 of the Land Revenue Act would be only ministerial or administrative act to be carried out to completely dispose of the partition case instituted before the Revenue Officer. Hence, once the decision on the property to be divided and on the mode of partition is taken by the Revenue Officer under Section 118, the joint status of the parties would stand severed on the date of such decision, subject to the decision in appeal if any preferred by the party. The consequential action of drawing an instrument of partition would follow thereafter. Hence, merely because the instrument of partition was not drawn, it could not be said that the partition was not completed or that the joint status of the parties was not severed. [Para 30][584-G; 585-A-C]
1.7 In the present case, the Assistant Collector i.e., concerned Revenue Officer vide the order dated 25.05.1982 had rejected the objections raised by the plaintiff and others with regard to the mode of partition and had confirmed the mode of partition accordingly. On that day, the “Naksha Be” was already annexed to the file and the case was listed on 31.05.1982 for hearing the objections as to the “Naksha Be”. On 31.07.1982, the Assistant Collector passed the order stating inter alia that the Patwari and Kanungo were present, and they had explained the parties about the passage and the boundaries of the plots, and that as per “Naksha Be”, the partition was accepted. The details of the number of khasras allotted to both the parties i.e., to defendant and others and to plaintiff were also mentioned in the said order. The partition having been accepted as per the said “Naksha Be”, the joint status of the parties had stood severed. Of course, the said order dated 31.07.1982 was challenged by the plaintiff by way of an appeal before the Collector who vide the order dated 12.10.1982 had dismissed the same. The said order of Collector was further challenged by the said plaintiff by filing revision application before the Commissioner. Though, the Commissioner had initially granted stay against the operation of the order dated 31.07.1982 upto 16.11.1982, admittedly the said stay was not further extended thereafter. Under the circumstances, the joint status of the parties had come to an end on 31.07.1982, when the Assistant Collector passed the order and when the same was confirmed by the Collector on 19.10.1982. The trial court and the appellate court, under the circumstances, had rightly held that the plaintiff did not possess the status of co-sharer on the date of decree i.e., on 01.12.1982, and that his right of pre-emption had not survived till the date of passing of the decree in the suits. The High Court grossly erred in misinterpreting the provisions of Punjab Pre-emption Act and of Land Revenue Act, and in setting aside the judgments and decrees passed by the trial court and the appellate court. The impugned order passed by the High Court is quashed and set aside. [Paras 32 and 33][585-H; 586-A-G]
U.P. Awas Evam Vikas Parishad vs. Gyan Devi AIR 1995 SC 724 : [1994] 4 Suppl. SCR 646 - relied on.
Shyam Sunder and Others vs. Ram Kumar and Another (2001) 8 SCC 24 : [2001] 1 Suppl. SCR 115; Bishan Singh & Others vs. Khazan Singh & Another AIR 1958 SC 838 : [1959] SCR 878; Bhagwan Das (Dead) by LRS and Others vs. Chet Ram 1971 (1) SCC 12 : [1971]
2 SCR 640; Barasat Eye Hospital vs. Kaustabh Mondal (2019) 19 SCC 767; Raghunath (Dead) by LRs. vs. Radha Mohan (Dead) Through LRs. And Others (2021)
12 SCC 501; Har Devi vs. Ram Jas and Others 1974 PLJ 345; Lala Ram vs. The Financial Commissioner, Haryana 1991 SCC Online P&H 1105; Pritam Singh vs. Jaskaur Singh 1992 SCC Online P&H 676; Munshi vs. The Financial Commissioner, Haryana, Chandigarh 1993 SCC Online P&H 1086; Ramji Lal and Another vs. The State of Punjab and Others AIR 1966 P&H 374; Pritam Singh vs. Jaskaur Singh 1992 SCC online P&H 676; Shub Karan Bubna Alias Shub Karan Prasad Bubna v. Sita Saran Bubna and Others (2009) 3 SCC (Civ) 820 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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