NARINDER SINGH Vs. DIN DYAL

JUDGEMENT

(1.) Din Dyal sought to pre-empt the sale dated 18.7.1977 on the basis that he was cousin of the vendor and after saying this the pedigreetable was reproduced in the plaint. A reading of the pedigreetable shows that the vendor is father's brother's son of the pre-emptor. He also pleaded that he was a co-sharer of the vendor. The vendee contested the suit and inter-alia pleaded that the sold land was not agricultural land or village immoveable property and since it was urban property, suit for pre-emptor is not maintainable. The trial Court found the pre-emption to be the father's brother's son (although in the judgment cousin is mentioned) and that he was a co-sharer but found that the sold land was urban, which was not pre-emptible. On pre-emptor's appeal the lower appellate Court upset the finding of the trial Court regarding the fact that it was urban property and was not pre-emptible. The finding recorded by the trial Court about the relationship of cousin was not disputed and findings regarding co-sharer was upheld, the appeal was allowed and the suit for pre-emption was decreed. This is vendee's second appeal.

(2.) The right to claim pre-emption on the ground of relationship has been declared void by the Supreme Court in Atam Parkash v. State of Haryana, 1986 AIR(SC) 859 , and therefore, as father's brother's son, the pre-emptor cannot get a decree for pre-emption.

(3.) As regards co-sharer in Jagdish v. Nathi Mal Kejriwal, 1987 AIR(SC) 68, it has been held by the Supreme Court that a co-sharer who comes within the relationship mentioned in Firstly, Secondly and Thirdly of section 15(1)(b) cannot pre-empt the sale. The pre-emptor falls in Thirdly and therefore, in view of the aforesaid judgment in Jagdish's case he cannot claim pre-emption as a co-sharer either.