RSA No. 151 of 1986 (1)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: 10.7.2009
(i) RSA No. 151 of 1986.
Teka ......Appellant
Versus
Raj Singh .......Respondent
(ii) RSA No. 152 of 1986.
Teka ......Appellant
Versus
Shri Krishan .......Respondent
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA.
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Shri S.C. Sibal, Senior Advocate, with
Shri V.S. Rana, Advocate, for the appellant.
Shri Amit Aggarwal, Advocate, for the respondent.
HEMANT GUPTA, J. (Oral).
This order shall dispose of RSA No.151 of 1986 arising out of
a suit for possession by pre-emption in respect of the registered sale deed
dated 14.12.1982 and RSA No. 152 of 1986 arising out of a suit for
RSA No. 151 of 1986 (2)
possession by pre-emption in respect of the registered sale deed dated
17.11.1982. However, for facility of reference, facts are taken from RSA
No. 151 of 1986.
Smt. Kapoori, Pran and Imrat, executed above said sale deeds
in respect of their ½ share each. The plaintiff claimed a superior right to
pre-empt the said sale on the ground that he is a co-share in the khewat and
Khatas in which suit land is comprised.
In the written statement, the defendant denied that the plaintiff
is co-sharer in the suit land. In evidence, the defendant relied upon
documents Exhibits D.3, a judgment delivered by the Additional District
Judge, Gurgaon, on the basis of compromise. The compromise is Exhibit
D4/1. Exhibit D4 is the copy of the decree sheet. It transpires from the
record that earlier the vendor of the plaintiff obtained proprietary rights
being occupancy tenant from the Court of Assistant Collector, Ist Grade,
Gurgaon, vide order dated 31.3.1976. All the proprietors were allegedly not
impleaded as respondents in the aforesaid proceedings. Therefore, the
proprietors, who were not impleaded, filed a suit challenging the order of
Assistant Collector. Vide judgment Exhibit D.3, appeal filed by the vendor
was settled on the basis of compromise as the suit was filed in the
representative capacity by inviting objections by public notice. As per the
compromise, 10 bighas of the disputed land was to remain in ownership
and possession of the vendor of the plaintiff. The said 10 bighas comprise
of the land, which is subject matter of sale. It was thus held that all the
vendors were exclusive owners of the land in dispute.
The appellant has challenged the judgment and decree passed
by the Courts below, seeking a substantial questions of law to the effect that
RSA No. 151 of 1986 (3)
`whether a co-sharer can in law pre-empt the sale in a joint khewat of
which partition has not taken place as per the provisions of the Punjab Land
Revenue Act, 1887?’ and `Whether a fractional sale by a co-sharer would
amount to partition of the property in accordance with the provisions of the
Land Revenue Act, 1887?
However, none of the substantial questions of law as sought to
be raised by the plaintiff, arises for consideration in the present appeal.
The Punjab Pre-emption Act, 1913, as applicable in the State of Haryana,
was amended vide Haryana Act No. 10 of 1995. By such amendment right
of a co-sharer to seek pre-emption of the land was taken away. The
provisions of Haryana Act No. 10 of 1995 were considered by the Hon’ble
Supreme Court in Shyam Sunder v. Ram Kumar, AIR 2001 SC 2472,
wherein an argument was raised that the suits already pending to seek pre-
emption, being a co-sharer, are not affected by the said amendment. It was
held by the Hon’ble Supreme Court to the following effect:-
“11. An analysis of the aforesaid decisions referred to
in first category of decisions, the legal principles that
emerge are these:-
1. The pre-emptor must have the right to pre-empt on
the date of sale, on the date of filing of the suit and
on the date of passing of the decree by the Court
of the first instance only.
2. The pre-emptor who claims the right to pre-empt
the sale on the date of the sale must prove that such
right continued to subsist till the passing of the
decree of the first Court. If the claimant loses that
right or a vendee improves his right equal or above
the right of the claimant before the adjudication of
suit the suit for pre-emption must fail.
3. A pre-emptor who has a right to pre-empt a sale
RSA No. 151 of 1986 (4)on the date of institution of the suit and on the date
of passing of decree, the loss of such right
subsequent to the decree of the first Court would
not affect his right or maintainability of the suit for
pre-emption.
4. A pre-emptor who after proving his right on the
date of sale, on the date of filing the suit and on the
date of passing of the decree by the first Court, has
obtained a decree for pre-emption by the Court of
first instance, such right cannot be taken away by
subsequent legislation during pendency of the
appeal filed against the decree unless such
legislation has retrospective operation.”
Both the Courts have recorded a concurrent finding of fact that
the vendors were exclusive owners of the suit property on the date of sale.
Such finding has been recorded in view of the compromise arrived at before
the Civil Court. The documents of such compromise are Exhibits D.3, D.4
and D4/1. Therefore, on the date of decree of the trial Court, the plaintiff
had no right to pre-empt the sale as the vendors were in exclusive
possession of the same as owners.
The arguments that such decree was not given effect to in the
revenue record and, therefore, the partition of the land is not by metes and
bounds, is not sustainable. It was held by this Court in Ajmer Singh v.
Dharam Singh, 2006(2) RCR (Civil) 541, that it is not necessary that the
partition is to be reflected in the revenue records. It was held to the
following effect:-
“18. In view of the above binding precedents, it is
apparent that the revenue record by itself neither create
or extinguish title. Since co-owners by mutual consent
have entered into separate portions of land and are in the
RSA No. 151 of 1986 (5)enjoyment of their respective portions, merely the said
private partition has not been formally affirmed will not
relegate the parties to pre-partition status. The role of the
revenue officer in Section 123 of the Act is that of
“affirmation” of partition. The said affirmation is subject
to verification of the factum of partition only. The
inquiry in terms of sub-section (2) of Section 123 of the
Act is restricted to the effect to point out that, in fact,
partition has been made. Therefore, non affirmation of
partition by the revenue officer will not render a private
partition redundant but such affirmation will only
determine the rights of an owner in respect of their
obligation to pay land revenue to the State in terms of the
provisions of the Act.
19. It is open to any of the co-sharers to seek such
affirmation who may apply to the revenue officer. There
is no provision in the Act which entails any penal
consequences of not recording such private partition in
the revenue record. Thus, the affirmation of the revenue
officer of the private partition in the revenue record is a
directory provision. The purpose of such affirmation is
only to determine the right of the State to recover land
revenue and to keep its record update. Mere fact that
such private partition has not been recorded in the
revenue record will not render an act of the parties as
totally redundant. It is well settled that entries in the
revenue record do not determine, create or extinguish the
title of any person. The revenue record is corroborative
of the fact recorded in the revenue record as it is
maintained in normal course of affairs of the State and
carries presumption of truth. But failure to seek
affirmation of private partition, if otherwise proved on
record, cannot be negated only for the reason that the
same has not got the affirmation from the revenue
authorities.”
RSA No. 151 of 1986 (6)
In view of the above, the finding of fact that the vendor was
the exclusive owner of the suit land, cannot be said to be suffering from any
patent illegality or irregularity, which may give rise to any substantial
question of law in the present second appeals.
Hence, both the appeals are dismissed.
(HEMANT GUPTA)
JUDGE
10.7.2009
ds