JEET RAM AND ORS Vs. SADHU RAM

JUDGEMENT

(1.) The plaintiffs' suit for enforcing a right of preemption regarding land measuring 21 kanals 13 marlas which was said to be a half share in a total extent measuring 45 kanals 13 marlas in Karkauli village to interdict a sale made on 15.05.1980 by Kashmiri Lal. The suit had been originally dismissed but in the appeal filed to the Additional District Judge, Ambala in Civil Appeal No.183/13 of 1983, the appellate Court reversed the decision dated 25.03.1985 and decreed the plaintiffs' suit on condition that they should deposit Rs. 67,500/- including the sale price and stamp charges less the amount already deposited on 02.05.1985. The defendants whose sale has been preempted at the instances of the plaintiffs are the appellants before this Court.

(2.) The defendants' contention was rested on the fact that the original owner Kashmiri Lal had effected two sales, one on 15.05.1980 with reference to 14 kanals 17 marlas which is the subject of suit and yet another sale on 10.11.1980 in favour of the plaintiffs themselves in respect of 21 kanals 13 marlas. The suit was dismissed on the ground that there had been an order passed by the Assistant Collector, 1st Grade (Ex.D10) and the Collector, Jagadhri directing partition to be effected and Naksha Be prepared and, therefore, the plaintiffs were no longer co-sharers in the suit land and thus no statutory right to preemption could be claimed. The appellate Court reversed the decision on a finding that the direction for preparation of Naksha Be was not relevant but what was essential was the actual physical partition and delivery of possession. The Court relied on judgments of this Court to hold that there had been no actual partition made and possession taken pursuant to the document and consequently, the plaintiffs must be taken as still the co-owners, who had a preferential right of preemption.

(3.) The issue before this Court is only whether the document directing partition must be taken as terminus quo of the relationship as co-owners and that whether the actual partition of physical possession has to be proved to deny the right of preemption. In Pritam Singh Versus Jaskaur Singh, 1992 102 PunLR 742, the issue was when partition could be taken as completed. The Court observed that when the revenue officer caused an instrument of partition to be prepared, the date on which partition was to take effect was to be recorded in that instrument. The instrument of partition itself is required to be prepared only after the partition was completed. The joint status of party would come to an end, once the partition order was passed and the partition itself will not be effective in the absence of instrument of partition. Preparation of 'Naksha Be' cannot amount to cessation of ownership. It is the instrument of partition which will create the division. Applying to this case, it cannot be stated that partition had been effected till the instrument of partition was prepared and considering the fact that the suit had been disposed of on 27.08.1983 and sanad takseem had been prepared only subsequently on 29.08.1983, the partition could not be said to have been effected on the date when the suit was disposed off.