ISHAR KAUR Vs. BANTA SINGH

JUDGEMENT

(1.) Vide registered deed dated January 6, 1978, Smt. Satya Devi sold 16 Kanals of land for Rs. 27,000/- in favour of the appellant. The respondents who claimed to be husband's brother and husband's brother's son respectively filed a suit for possession on the ground that they had a superior right of pre-emption. Two grounds were put forth at the trial in support of the alleged superiority of their right. Firstly, it was submitted that under Section 15(2) of the Punjab Pre-emption Act (hereinafter referred to as 'the Act') the respondents had a superior right of pre-emption because the property had devolved upon Smt. Satya Devi from her husband. Secondly, it was asserted that since they were co-sharers in respect of the land in dispute they had a superior right of pre-emption.

(2.) The respondents did not make a specific mention in the plaint that the land in dispute devolved upon Smt. Satya Devi from her husband. If the land in dispute was the self-acquired property of the latter, then right of pre-emption would be governed by Section 15(1) of the Act, wherein the husband's brother and husband's nephew are not shown as eligible persons to claim a right of pre-emption. The respondents could only succeed if they had alleged and proved that the property in dispute had devolved upon Smt. Satya Devi from her husband. As noticed earlier, they did not raise the necessary pleas in the plaint to this effect. In Dalip Singh and others v. Uttam Singh, 1970 PunLJ 776, a learned Judge of this Court has held that in a suit for pre-emption, it is the bounden duty of a pre-emptor to allege in the plaint all the necessary facts constituting the ground on which he seeks to enforce his right of pre-emption. We are in respectful agreement with this view. In Bhagat Singh and others v. Jaswant Singh, 1966 AIR(SC) 1861it was observed :-