SARWAN SINGH Vs. TARSEM LAL

JUDGEMENT

(1.) THE facts giving rise to this regular Second Appeal by the defendants may be better appreciated with the assistance of the following pedigree table:-Dial Dass ______________________|_______________________ | | Rikhi Ram Smt. Nanti = Beli = Smt. jagiro (Plff. No. 2) | | Mohinder Pal ________|______ | | | Tarsem Lal Smt. Kaushalya Smt. Sheela (Plff. No. 1.) On the 24th of August, 1966, Mohinder Pal and his two step-sisters Smt. Kaushalya and Smt. Sheela jointly sold 2 kanals 4 marlas of land being a half share in 4 kanals 8 marlas of land situate in the revenue estate of village Hussainpur Guru, tahsil and district Hoshiarpur to the vendees-defendants-appellants for an ostensible consideration of Rs. 1500/ -. Tarsem Lal and Rikhi Ram plaintiffs who are respectively the son and father's brother Mohinder Pal, one of the vendors instituted the suit of which this appeal had arisen, on the 22nd of August, 1967 for possession of the land forming the subject-matter of the sale above mentioned, through pre-emption. The suit was resisted by the appellants mainly on the ground that the plaintiffs had no right or pre-emption. It was pleaded in their written statement that in so far as the share of Mohinder Pal in the land sold was concerned, the same was co-parcenary property belonging to a joint Hindu family of which Mohinder Pal and his son Tarsem Lal, plaintiff No. 1 were both members and of which Mohinder Pal was the Karta and that, therefore, Tarsem Lal, plaintiff No. 1 was in reality a party to the sale. In respect of that share of the land which Smt. Kaushalya and Smt. Sheela had sold to the appellants, the latter's plea was that the two daughters of Smt. Jagiro had inherited the property from their father Beli and that the case, in so far as that share was concerned was governed by the provisions of Section 15 (2) (a) (i) of the Punjab Pre-emption Act, where under a father's brother of the vendor had no right of pre-emption. Both these pleas were negatived by the two Courts below. The lower appellate Court further held that even if the facts as stated in those pleas to taken for granted, the plaintiffs were still entitled to pre-empt the sale inasmuch as Tarsem Lal, plaintiff No. 1, had got a superior right of pre-emption in respect of that part of the land in dispute which was sold by Smt. Kaushalya and Smt. Sheela vendors while Rikhi Ram, plaintiff No. 2 was clothed with a similar right in respect of that share of it which had been sold by Mohinder Pal. The other points in dispute between the parties are not material for the disposal of this appeal and need not be stated. It may be mentioned however, that the lower appellate Court passed a decree in favour of the plaintiffs for possession of the land in dispute by pre-emption subject to payment by them of a sum of Rs. 1489. 28 to the appellants on or before the 18th of March, 1971, directing that if the amount was not so paid, the suit shall stand dismissed. In either event, the parties were left to bear their own costs throughout.

(2.) THE only point urged by Mr. Sarin in support of the appeal is that the Courts below were not entitled to split up the bargain of sale for the benefit of the plaintiffs. The point is wholly without substance. It is a well-established principle of the law of pre-emption that a pre-emptor has the right to obtain possession of that part of the property sold by a third person to which his right of pre-emption extends, on payment of the proportionate price. The position in the present case is that there is no evidence indicating that the share of Mohinder Pal in the land sold belonged to any co-parcenary of which Tarsem Lal, plaintiff No. 1 was a member nor has Mr. Sarin been able to point out any material on the record from which it may be inferred that Smt. Kaushalya and Smt. Sheela had inherited their part of the land sold from their father Beli. Each one of the plaintiffs is thus entitled to pre-empt the whole transaction of sale under the provisions of sub-section (1) of S. 15 of the Punjab Pre-emption Act. Even if the factual position with regard to the ownership of the land sold be as claimed by the appellants they have no right to resist the suit for as held by the lower appellate Court, the right of pre-emption of Tarsem Lal, plaintiff No. 1, will extend to a part of the land in dispute and that of Rikhi Ram, plaintiff No. 2, to the rest of it.

(3.) NO other point has been urged before me. The appeal is accordingly dismissed with costs subject to what follows. As the plaintiffs were allowed to withdraw the deposit of the consideration for the sale under an order dated 21st of May, 1971, passed by Gopal Singh, J. , they are directed to make the deposit afresh on or before the 1st of April, 1972. If they fail therein, the appeal shall stand accepted and the suit dismissed with costs throughout. Appeal dismissed.