ISA ALIAS HESA Vs. AHMAD KHAN

JUDGEMENT

(1.) THIS is defendants Regular Second Appeal against the judgment of reversal dated 14.3.1985 passed by the learned Additional District Judge, Faridabad, vide which after setting aside the judgment and decree of the trial Court the suit of the plaintiff-respondent for pre-emption of the sale deed in question has been decreed.

(2.) THE instant suit was filed by the plaintiff-respondent for possession by way of pre-emption of the land in question which was sold by Smt. Gokli Bai and Ved Parkash (vendors) to the appellants vide registered sale deed dated 14.2.1979. Vide the said sale deed, 15 marlas of land out of killa No. 25//18/1 measuring 2 kanals 12 marlas was sold by the aforesaid vendors for a consideration of Rs. 1.000/-. The aforesaid suit for preemption was filed on the plea that the plaintiff-respondent was co-sharer in the land in question and, thus, was having a superior right to pre-empt the impugned sate as he had already purchased 1 kanal 15 marlas of land from the same vendors and from the same khasra number vide registered sale deed dated 11.7.1977 (Ex. P.1).

(3.) THE trial court accepted the aforesaid two contentions of the appellants and dismissed the suit of the plaintiff-respondent. On appeal, the said judgment and decree passed by the trial court was set aside by the first Appellate Court and the suit of the plaintiff was decreed. On the first point, it was held that though the plaintiff had purchased specific portion of killa No. 25//18/1 by sale deed Ex.P1 but merely because he had purchased a specific portion of the khasra number, it cannot be said that he had not become co- sharer in the said Khasra number. The first Appellate Court came to the said conclusion on the basis of the law laid by the Full Bench of this Court in Bhartu v. Ram Sarup, 1981 P.L.J. 204 wherein it was held that the sale of a specific portion of the land out of the joint land will deem to be sale of the share of the joint land irrespective of the fact whether the land sold is fractional share or specified portion comprised of particular khasra numbers. On the second point, it was held that though one of the appellant-vendees, namely, Isa alias Hesa had purchased a part of the Khasra number in question vide sale deed dated 16.7.1976 (Ex.D2) yet it did not enable the said vendee to defeat the superior right of the plaintiff-respondent because he had purchased the land in question by associating with himself one Makhmul (one of the appellant), who was not a co-sharer in the said land. While relying upon another Full Bench decision of this Court in Garib Singh v. Harnam Singh and others, 1971 Revenue Law Reporter 706, it was held that by associating Makhmul in the impugned sale, who was not a co-sharer in the land in suit, the appellant Isa alia Hesa had sunk to the level of Makhmul, a stranger to the land in suit, in such situation, the vendee forfeits his right to resist per- emptors suit.