ANUP SINGH Vs. ILAM CHAND

JUDGEMENT

(1.) This appeal on behalf of two plaintiffs is directed against the judgment dated 14th November, 1967, passed by the Additional District Judge, Ambala, whereby their suit for the possession of some land on the basis of their superior right of pre-emption was dismissed. The plaintiffs claimed the superior right on their being co-sharers in the property sold. The sale of the land was effected by five heirs of Jai Parshad three of whom were his sons. The fourth heir was Gian Bala as the widow and the fifth heir was Pushpa as being the daughter. The sale took place on 23rd March, 1965, in favour of Ilam Chand for a consideration of Rs. 5,233.75. The suit had been tried by the Sub-Judge Third Class, Jagadhri, who by his judgment dated 27th March, 1967, held that two-fifths share of the land belonging to the female heirs of Jai Parshad could not be pre-empted by the co-sharers in view of the provision contained in sub-section (2) of Section 15 of the Punjab Pre-emption Act. By taking this view of the matter, he had decreed the suit to the extent of three-fifths of the land on payment of a proportionate amount of the sale price. The lower appellate Court took this view that the vendee had become owner of two-fifths of the land as a co-sharer by the sale deed in dispute. He was said to be such a co-sharer in respect of whom no suit for pre-emption could be brought. In this manner, he could be taken to be a co-sharer on the date of the institution of the suit and thus the rest of the land as well could not be pre-empted by the plaintiffs. Phul Chand v. Mehtab Sunder Dass and others, 1946 AIR(Lah) 345was cited in support of the view taken by the learned Additional District Judge, it had been held therein that a vendee in a suit brought to enforce, on the ground of vicinage, the right of pre-emption in respect of one of the properties purchased by him could successfully resist the suit on the strength of his title to an adjoining property conveyed to him by means of the same sale deed. Another authority, which is fully applicable to the facts of this case, has been cited by the learned counsel for the vendee-respondent before this Court. This authority is Ram Kishan v. Smt. Sharbati and others, 1972 PunLJ 54. The holding is as under :-

(2.) Thus, the improvement made by the vendee in his status by the sale deed in dispute can itself be taken into consideration for holding that he had become such a co-sharer which could defeat the right of the plaintiffs. I thus do not see any force in this appeal and dismiss the same with costs.