MALA RAM Vs. SUBHASH CHANDER

JUDGEMENT

(1.) Subhash Chander and three others filed suit to pre-empt the sale of 46 Kanals 6 Marlas on the ground that they are co-sharers of the vendors. The trial Court decreed their suit in regard to 31 Kanals 4 Marlas. The vendee went up in appeal and the pre-emptors filed cross-objections. The vendee's appeal was dismissed but the cross-objections of the pre-emptors were allowed and the decree for pre-emption was passed for 43 kanals 9 Marlas. Kadam Singh was a rival pre-emptor. The lower Appellate, Court in his appeal came to the conclusion that he was entitled to pre-emption on the ground of relationship with the vendors and since he had a superior right to pre-empt, he was given the first choice to deposit the amount by a certain date and failing him, an extended date was given to the co-sharers to deposit the preemption amount. This appeal has been filed by the vendee against the judgment and decree in favour of co-sharers.

(2.) Today, the appeal filed by the vendee against Kadam Singh the rival pre-emptor, has been allowed and the suit for preemption filed by him has been dismissed as the ground of pre-emption on account of relationship has been declared ultra vires by Supreme Court in Atam Parkash V. State of Haryana and others,1987 RRR 116. The rival pre-emptor is out from the scene and it has to be seen whether the lower Appellate Court was right in granting the pre-emption decree in favour of co-sharers in regard to 43 Kanals 9 Marlas.

(3.) It is urged by Shri V. K. Jain, Advocate appearing for the vendee, that the sale was of 46 Kanals 6 Marlas whereas the lower Appellate Court has found the pre-emptors to be entitled to 43 Kanals 9 Marlas out of sold land, with result that in remaining sold, land, the vendee became co-sharer by purchase and on the date of suit he had equal status in the land as co sharer as was of the pre-emptors and, therefore, since the pre-emptors did not have superior right of pre-emption, the suit for pre-emption has to be dismissed. In support of the argument, reliance is placed on Anup Singh and another V. Ilam Chand, 1978 RajdhaniLR 588 and Chander V. Madan Gopal, 1981 RajdhaniLR 478.