INDRAJ Vs. AMI LAL

JUDGEMENT

(1.) The plaintiff-petitioner has filed a suit for possession by way of pre-emption on the basis of his being a co-sharer in the suit land. In the written statement filed on behalf of the vendee-defendants, a plea has been taken on the basis of improved status by virtue of sale deed dated October 22, 1981 regarding which the suit for pre-emption is also pending. On the basis of the said plea, the defendants wanted the plaintiff's suit to be dismissed as such. The plaintiff moved an application under Section 28 (A) of the Punjab Pre-emption Act for staying the proceedings in the suit till the earlier suit for pre-emption challenging the sale vide sale deed dated October 22, 1981 was finally disposed of. According to the plaintiff pre-emptor, the present suit could not be decided unless the earlier suit in which the title of the vendee-defendants is involved on the basis of which the plea has been taken in the present suit is decided first. In reply to the said application, the vendee defendants submitted that their right of being co-sharers by virtue of sale deed dated October 22, 1981 was not inchoate and indefeasible, as alleged. It was also denied that the right of the defendants was hit by Section 28(A) of the Punjab Pre-emption Act. According to the defendants, the application has been moved at a belated stage and Section 28(A) has no application to the facts of the present case as the same applies only to the right of a pre-emptor.

(2.) The trial Court took the view that Section 28(A) of the Punjab Pre-emption Act has no application to the facts of the present case and there are no sufficient grounds for postponement of the decision of the present case till the decision of the pre-emption suit with respect to the sale deed dated October, 22 1981 pending in the Court of the Sub Judge, Ist Class, Gurgaon. Consequently, the application filed under Section 28(1) was dismissed.

(3.) The learned counsel for the petitioner vehemently contended that a bare perusal of Section 28 (A) will show that if, in any suit for pre-emption, any person bases a claim or plea on a right of pre-emption, derived from the ownership of the land or other immovable property and that title to such land or property is liable to be defeated by the enforcement of a right of pre-emption with respect to it, the Court shall not decide the claim or plea until the period of limitation for the enforcement of such right of pre emption has expired and the suits for pre-emption, if any, instituted with respect to the land or property during the period have been finally decided. According to the learned counsel, if in the earlier suit the plaintiff pre-emptor succeeds, then the plea of the defendants in the subsequent suit, that is, the present suit that they are co-sharers in the suit land will not be available to them; and that being so, in view of the provisions of Section 28 (A) of the Punjab Pre-emption Act, the Court shall not decide the claim or plea of the defendants in the present suit till the earlier suit was finally decided. He also referred to the objects and reasons for introducing Section 28(A) in the statute book, which, according to the learned counsel, are relevant while interpreting the said section.