ANANT RAM Vs. KHAZAN SINGH

JUDGEMENT

(1.) This judgment will dispose of Regular Second Appeal Nos. 2510 of 1982 and 239 of 1983, as both of them have arisen out of the one and the same judgment of the lower Appellate Court. They are in the nature of cross-appeals.

(2.) Land measuring 23 kanals 1 marla out of the land measuring 32 kanals 1 marla being 3/4th share thereof was sold in faovur of the vendees Anant Ram and others vide sale-deed dated November 6, 1978, for a sum of Rs. 29,000.00. The plaintiff Khazan Singh field the suit for possession claiming superior right of pre-emption being a co-sharer in the suit land. It was also claimed that he was the real brother of the vendor and on that account also, he was entitled to pre-empt the sale. The suit was resisted on the plea that the land had been reclaimed and, therefore, the plaintiff had no right to pre-empt the same. The trial Court found that out of the land sold out three khasra Nos., i.e. khasra Nos. 23, 24 and 25 were reclaimed whereas khasra Nos. 16, 17 and 18 were not reclaimed. Consequently, the suit qua the said three khasras Nos. was dismissed whereas so far as the other khasras Nos. were concerned, it was decreed. Dissatisfied with the same, both the parties filed separate appeals. The learned Additional District Judge dismissed both the appeals by the impugned judgment and, thus, maintained the decree passed by the trial Court. Dissatisfied with the same, both the parties have filed these two appeals Regular Second Appeal No. 2510 of 1982 has been filed by the vendees whereas Regular Second Appeal No. 239 of 1983 has been filed by the plaintiff-pre-emptor.

(3.) The learned counsel for the vendees-appellants contended that the superior right of pre-emption on the ground of the plaintiff being the brother of the vendor was no more available to him in view of the Supreme Court decision in Atam Parkash v. State of Haryana, 1986 89 PunLR 329. Thus, argued the learned counsel, the plaintiff could claim the superior right of pre-emption being a co-sharer only. Since it has been concurrently found by both the Courts below that three khasras Nos. were reclaimed and qua them the suit has been dismissed, the vendees became the co-sharers in the suit land along with the plaintiff and, therefore, the plaintiff could not claim the superior right of pre-emption. In support of the contention, the learned counsel relied upon Chander v. Chao Khan,1980 0 PunLJ 7.