JHABBAR SINGH (DECEASED) THROUGH LEGAL HEIRS & ORS. versus JAGTAR SINGH S/O DARSHAN SINGH

[2023] 3 S.C.R.

AJHABBAR SINGH (DECEASED) THROUGH LEGAL HEIRS &ORS.

JAGTAR SINGH S/O DARSHAN SINGH

B(Civil Appeal No. 1497 of 2008)

APRIL 17, 2023

[AJAY RASTOGI AND BELA M. TRIVEDI, JJ.]

Punjab Pre-emption Act, 1913:ss. 4, 15, 19, 20 , 21 – PunjabLand Revenue Act, 1887 – ss. 118, 121, 123 – Right of pre-emptionC– Suit for possession of the suit lands by the respondent against theappellants-buyer, on the ground that he as co-sharer in the jointkhewat along with the owner-vendor had superior right to pre-empt the sales, and that he was not put to any notice of sale of thesuit lands to the appellants by the owner-vendor – Dismissed by theDtrial court on the ground that khewat had remained no more jointas per the order passed by the Revenue Officer in partition matterfiled during the pendency of the suits – First appeal also dismissed– However, the High Court allowed the appeals on the ground thaton the date of the passing of the decree, no instrument of partitionwas drawn by the Revenue Officer, and thus, the joint status of theEparties had not come to an end and respondent had not lost hissuperior right of pre-emption – On appeal, held: Plaint was looselydrafted, the respondent neither pleaded as to how he was the co-sharer, nor impleaded the owner of the suit lands, with whom heclaimed to be the co-sharer – Once the decision on the property toFbe divided and on the mode of partition is taken by the RevenueOfficer u/s.118, the joint status of the parties would stand severedon the date of such decision, subject to the decision in appeal ifany – Consequential action of drawing an instrument of partitionwould follow thereafter – Thus, merely because the instrument ofpartition was not drawn, it could not be said that the partition wasGnot completed or that the joint status of the parties was not severed– Joint status of the parties came to an end, when the AssistantCollector passed the order and when the same was confirmed bythe Collector – Trial court and the appellate court rightly held thatthe respondent did not possess the status of co-sharer on the dateHof decree and that his right of pre-emption had not survived till the

JHABBAR SINGH (DECEASED) THROUGH LEGAL HEIRS v.JAGTAR SINGH S/O DARSHAN SINGH

date of passing of the decree in the suits – Thus, the order passedby the High Court quashed and set aside.

Pre-emption: Right of pre-emption – General principles –Explained.

Code of Civil Procedure, 1908:

Ord. VI r.2(1) – Cardinal rule of pleadings – Reiterated.

Ord. I r.10 – Necessary party/ proper party – Non-impleadment of.

Allowing the appeals, the Court

HELD: 1.1 In very loosely drafted plaint, the plaintiff hadneither pleaded as to how he was the cosharer, nor had heimpleaded the said JS, the owner of the suit lands, with whom heclaimed to be the co-sharer, and who had sold the suit lands tothe defendants and Others. It is needless to say that in suit forpre-emption, the vendor i.e., the owner of the suit land who hadallegedly not given any notice of sale to the plaintiff as requiredto be given under Section 19 of the Pre-emption Act and againstwhom the right to pre-empt the sale is claimed would be properparty if not necessary party, for complete and final adjudicationon the issues involved in the suit. When right to pre-empt thesale was claimed by the plaintiff JS as co-sharer in the landsalong with the owner , alleging that the mandatory provisionscontained in Section 19 i.e., for giving notice to the pre-emptor,was not complied with by the owner or seller JS, his presence asthe party defendant was desirable along with the other defendantsand Others, to effectively and finally decide the disputes betweenthe parties. Though, Order I, Rule 9 states that no suit shall bedefeated by reasons of the misjoinder or non-joinder of parties,care must be taken by the court to ensure that all the parties, beit the plaintiff or the defendant, whose presence is necessary forcomplete and final adjudication on the issues involved in the suit,are before the court. That is the reason why the courts areempowered to strike out or add parties, at any stage of theproceedings as per Order I, Rule 10, C.P.C. [Paras 12, 13][577-F-G; 578-A-C]

1.2 Having regard to the absolutely sketchy and looselydrafted plaint in the instant case, the Court is tempted to

CDEF

Aregurgitate the basic and cardinal rule of pleadings contained inOrder VI, Rule2(1) of the Code, according to which every pleading(i.e., plaint or written statement) has to contain statement inconcise form of the material facts on which the party pleadingrelies for his claim or defence, as the case may be. Of course, theBpleading need not contain the evidence by which such materialfacts are to be proved, nonetheless the facts necessary toformulate complete cause of action i.e., the material facts mustbe stated. Omission of single material fact would lead to anincomplete cause of action and in that case, the statement of claimwould become bad in the eye of law. [Para 14][578-D-F]C

1.3 Apart from the fact that the right of pre-emption is veryweak right and capable of being defeated by all legitimatemethods, the pre-emptor must establish that he had the right topre-empt on the date of sale, on the date of the filing of the suitand on the date of the passing of the decree by the Court of theDfirst instance. The pre-emptor or the claimant-plaintiff who claimsthe right to pre-empt the sale on the date of sale, has also toprove that such right continued to subsist till the passing of thedecree of the first court. If the claimant-plaintiff loses that rightor the vendee improves his right equal or above the right of theEclaimant before the adjudication of the suit, the suit for pre-emption would fail. [Para 17][579-G; 580-A-B]1.4 It is difficult to subscribe the view taken by the HighCourt in the impugned order that since no instrument of partitionwas drawn on the date of passing of the decree by the trial court,Fthe joint status of the parties had not come to an end. Havingduly considered the provisions contained in the Punjab LandRevenue Act and also the Haryana Land Records Manual, itclearly emerges that as per Section 118 of the Land RevenueAct, when there is question as to the property to be divided, orGthe mode of making partition, the Revenue Officer after suchinquiry as he deems necessary, is required to record an orderstating his decision on the question and record his reasons forthe decision. [Para 26][589-G; 583-A-B]

1.5 Section 121 states that when the partition is completed,the Revenue Officer shall cause an instrument of partition to beprepared, and the date on which the partition is to take effect tobe recorded therein. If the said provision contained in Section121 is closely read, it clearly appears that it deals with theprocedure to be followed by the Revenue Officer, after thepartition is completed. Meaning thereby, the Revenue Officerafter the Partition is completed, has to cause an instrument ofpartition to be prepared and record therein the date on which thepartition is to take effect. When the inquiry as contemplated inSection 118 on the question as to the property to be divided, orthe mode of making partition is made by the Revenue Officer,and an order stating his decision on the question along with thereasons for such decision is passed, the partition is deemed tohave completed, subject to the decision of appeal that may bepreferred against such order as contemplated in sub-section 2 ofSection 118. Section 117 of the Punjab Land Revenue Act confersdiscretion upon the Revenue Officer to decide the question as tothe title in any property of which the partition is sought, either byhimself or to refer the question to be determined by the competentcourt. Thus, the jurisdiction of the Revenue Officer in the casesof partition is concurrent with that of the civil court. Therefore,for the purpose of interpreting Section 121, the Court can safelydraw an analogy from the provisions contained in Order XX, Rule18 C.P.C. which pertain to the procedure to be followed on thepassing of the decree for the partition of the property. [Paras 27and 28][583-D-H]

1.6 If the said analogy is applied to the provisions containedin the Punjab Land Revenue Act pertaining to the Partition, whena decision is taken by the Revenue Officer under Section 118 onthe question as to the property to be divided and the mode ofpartition, the rights and status of the parties stand decided andthe partition is deemed to have completed. At this stage, suchdecision is required to be treated as the “decree”. Theconsequential action of preparing the instrument of partition ascontemplated in Section 121 of the Land Revenue Act would beonly ministerial or administrative act to be carried out tocompletely dispose of the partition case instituted before the

ARevenue Officer. Hence, once the decision on the property to bedivided and on the mode of partition is taken by the RevenueOfficer under Section 118, the joint status of the parties wouldstand severed on the date of such decision, subject to the decisionin appeal if any preferred by the party. The consequential actionof drawing an instrument of partition would follow thereafter.BHence, merely because the instrument of partition was not drawn,it could not be said that the partition was not completed or thatthe joint status of the parties was not severed. [Para 30][584-G;585-A-C]1.7 In the present case, the Assistant Collector i.e.,Cconcerned Revenue Officer vide the order dated 25.05.1982 hadrejected the objections raised by the plaintiff and others withregard to the mode of partition and had confirmed the mode ofpartition accordingly. On that day, the “Naksha Be” was alreadyannexed to the file and the case was listed on 31.05.1982 forDhearing the objections as to the “Naksha Be”. On 31.07.1982,the Assistant Collector passed the order stating inter alia thatthe Patwari and Kanungo were present, and they had explainedthe parties about the passage and the boundaries of the plots,and that as per “Naksha Be”, the partition was accepted. Thedetails of the number of khasras allotted to both the parties i.e.,Eto defendant and others and to plaintiff were also mentioned inthe said order. The partition having been accepted as per thesaid “Naksha Be”, the joint status of the parties had stoodsevered. Of course, the said order dated 31.07.1982 waschallenged by the plaintiff by way of an appeal before the CollectorFwho vide the order dated 12.10.1982 had dismissed the same.The said order of Collector was further challenged by the saidplaintiff by filing revision application before the Commissioner.Though, the Commissioner had initially granted stay against theoperation of the order dated 31.07.1982 upto 16.11.1982,

admittedly the said stay was not further extended thereafter.GUnder the circumstances, the joint status of the parties had cometo an end on 31.07.1982, when the Assistant Collector passedthe order and when the same was confirmed by the Collector on19.10.1982. The trial court and the appellate court, under thecircumstances, had rightly held that the plaintiff did not possessHthe status of co-sharer on the date of decree i.e., on 01.12.1982,

JHABBAR SINGH (DECEASED) THROUGH LEGAL HEIRS v.JAGTAR SINGH S/O DARSHAN SINGH

and that his right of pre-emption had not survived till the date ofpassing of the decree in the suits. The High Court grossly erredin misinterpreting the provisions of Punjab Pre-emption Act andof Land Revenue Act, and in setting aside the judgments anddecrees passed by the trial court and the appellate court. Theimpugned order passed by the High Court is quashed and setaside. [Paras 32 and 33][585-H; 586-A-G]

U.P. Awas Evam Vikas Parishad vs. Gyan Devi AIR 1995

SC 724 : [1994] 4 Suppl. SCR 646 - relied on.

Shyam Sunder and Others vs. Ram Kumar and Another(2001) 8 SCC 24 : [2001] 1 Suppl. SCR 115; BishanSingh & Others vs. Khazan Singh & Another AIR 1958SC 838 : [1959] SCR 878; Bhagwan Das (Dead) byLRS and Others vs. Chet Ram 1971 (1) SCC 12 : [1971]2 SCR 640; Barasat Eye Hospital vs. Kaustabh Mondal(2019) 19 SCC 767; Raghunath (Dead) by LRs. vs.Radha Mohan (Dead) Through LRs. And Others (2021)12 SCC 501; Har Devi vs. Ram Jas and Others 1974PLJ 345; Lala Ram vs. The Financial Commissioner,Haryana 1991 SCC Online P&H 1105; Pritam Singhvs. Jaskaur Singh 1992 SCC Online P&H 676; Munshivs. The Financial Commissioner, Haryana, Chandigarh1993 SCC Online P&H 1086; Ramji Lal and Anothervs. The State of Punjab and Others AIR 1966 P&H374; Pritam Singh vs. Jaskaur Singh 1992 SCC onlineP&H 676; Shub Karan Bubna Alias Shub Karan PrasadBubna v. Sita Saran Bubna and Others (2009) 3 SCC(Civ) 820 – referred to.

A[2001] 1 Suppl. SCR 115referred toPara 19(2009) 3 SCC (Civ) 820referred toPara 29

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1497of 2008.

From the Judgment and Order dated 17.08.2007 of the High CourtBof Punjab & Haryana at Chandigarh in RSA No. 1470 of 1983.

With

Civil Appeal No.1498 of 2008.

Narender Hooda, Sr. Adv., Varun Punia, Jasbir Singh Malik, Advs.Cfor the Appellants.

Rajiv Bhalla, Sr. Adv., Tripurari R., Ms. Ritu Puri, B.S. Billoria,Sumeir Ahuja, Jai Surya J., Bharat Upreti, Sandeep Lamba, Sagar Roy,Ms. Reeta Puniya, Sunil, Anuj Raghuvanshi, Ram Narayan Mohanty,Ambes Shehbaz Ansari, Kamal Mohan Gupta, Ms. S. Janani, Shiv SinghDYadav, Priya Ranjan Kumar, Amar Nath Singh, Advs. for the Respondent.

The Judgment of the Court was delivered by

BELA M. TRIVEDI, J.

1. Both the appeals arise out of the common judgment and orderEdated 17.08.2007 passed by the High Court of Punjab and Haryana atChandigarh in RSA No.1470/1983 and RSA No. 1557/1983, wherebythe High Court, while allowing the said appeals filed by the original plaintiffJagtar Singh (predecessor of the present respondent)decreed the CivilSuits no. 420/1981 and 421/1981, filed by him, seeking decree for thepossession of the suit lands, claiming right of pre-emption against theForiginal defendants Jhabbar Singh and others (the predecessor of thepresent appellants). The present appellants and respondent have beensubstituted as the legal heirs of the original defendant Jhabbar Singh andoriginal plaintiff Jagtar Singh respectively.

2. The factual matrix giving rise to the present appeals are asGunder: -

(2.1) The Civil Suit No.420/1981 was filed by the plaintiff JagtarSingh against the defendant Jhabbar Singh and others, withregard to the land admeasuring 12 bighas representing 240/819[th]share of the land admeasuring 40 bighas 19 biswas, asHdetailed in para 1 of the plaint. The said land was originally

owned by one Jit Singh, who had sold the same forconsideration of Rs.46,500/- to the defendant Jhabbar Singhand others vide registered sale deed dated 07.04.1980.

(2.2) The Civil Suit no.421/1981 was also filed by the plaintiffJagtar Singh pertaining to the land admeasuring 10 bighas18 biswas representing 218/819[th]share of the landadmeasuring 40 bighas and 19 biswas as detailed in para 1of the plaint, originally owned by Jit Singh and his wife PiarKaur, who had sold the same for consideration of Rs42,500/- to the defendant Jhabbar Singh and others videregistered sale deed dated 24.04.1980.

(2.3) On 06.04.1981, the plaintiff Jagtar Singh filed the said twosuits seeking possession of the suit lands on the ground thathe was having superior right to pre-empt those sale deedsas the co-sharer in the joint khewat, however no notice ofthe sale was given to the plaintiff by the said owner JitSingh. The defendants Jhabbar Singh and others resistedthe suits denying the plaintiff’s claim of superior right ofpre-emption.

(2.4) During the pendency of the said suits, on25.05.1982, thedefendant Jhabbar Singh filed Partition case being no.78/TP before the Assistant Collector, Tehsil Pihowa, inwhich the plaintiff Jagtar Singh had filed his objections. TheAssistant Collector, Tehsil, Kurukshetra passed the followingorder on 25.05.1982 as under: -

“…..Therefore, the objections placed by Jagtar Singhand others are rejected and the mode of partition whichhas already been prepared has been confirmed. NakshaBe is already annexed in the file because it has alreadybeen prepared. Therefore, the case is to be listed on31.5.82 for objections as to Naksha Be”.

(2.5) Thereafter on 31.07.1982, the Assistant Collector, Tehsil,Pihowa passed the following order: -

“Today the file has been produced. Counsel of partiesare present, Patwari and Kanoongo are also present whoas per the earlier order have provided for passage andboundaries of the plots and about which the parties have

572SUPREME COURT REPORTS

Abeen explained. There was no passage for these plotsearlier. Even then passage has been given from Khasra802/1 and 806 from Village Kamoda to Village Jyotisarwhich is connecting these villages. Another passage isat the East side after 4-5 acres and if these plots did notget any other passages then this is the correct place forBsuch passage. As per Naksha Be of partition, the partitionis accepted the details of which is as follows:

Now the case is to be listed on 30/8/82 after expiry of time forappeal. Pronounced in Open Court.

F31-7-82

Sd/-A.C.Second ClassPihova”

G(2.6) It further emerges that thereafter the defendant JhabbarSingh had filed an application before the Trial Court seekingan amendment in the written statement in the suits statinginter alia that during the pendency of the suits, the jointkhata including the suit lands had been partitioned by theAC-I Grade, Pihowa vide order dated 31.07.1982.

Consequent upon such amendment, an additional issue cameto be framed by the trial court vide the order dated28.09.1982 in the suits, as to “whether the suit land hasbeen partitioned?”

(2.7) On 12.10.1982, the Collector Guhla dismissed the appealfiled by the said Jagtar Singh and Others against the orderBdated 31.07.1982 passed by the Assistant Collector, Pihowa.On 19.10.1982, the said Jagtar Singh had filed Revisionapplication before the Commissioner, in which theCommissioner had initially granted stay against the operationof the order dated 31.07.1982 upto 16.11.1982, howeverCthe said stay was not extended thereafter.

(2.8) Both the suits being 420/1981 and 421/1981 came to bedismissed by the Civil Judge, SJIIC Kaithal vide thejudgments and decrees dated 01.12.1982, holding inter aliathat khewat in dispute had remained no more joint as perthe order dated 31.07.1982 and that the plaintiff had lostthe joint status as the co-sharer on the date of passing thejudgment and decree. The First Appeals preferred by theplaintiff Jagtar Singh also came to be dismissed by theAdditional District Judge, Kurukshetra, vide the judgmentand decrees dated 08.04.1983.

(2.9) However, the RSA no. 1470/83 and RSA no. 1557/83preferred by the plaintiff Jagtar Singh against the saidjudgments and decrees of the First Appellate Court, cameto be allowed by the High Court vide the impugned commonjudgment and order dated 17.08.2007.

3. The learned senior counsel Mr. Narender Hooda appearing forthe appellants (original defendants) placing reliance on the provisionscontained in Section 121 of the Punjab Land Revenue Act, 1887(hereinafter referred to as the ‘Revenue Act’) submitted that after thepartition was completed, the function of the Revenue Officer to preparean instrument of partition and fixing the date for taking effect of thepartition was only an executory or ministerial act. As such “Naksha Be”having already been prepared when the Assistant Collector had passedthe order, and the objections of the respondent (original plaintiff JagtarSingh) with regard to the mode of partition having already been rejectedvide his order dated 25.05.1982, the said “Naksha Be” had stood

Aconfirmed, and thereafter the said “Naksha Be” was to be treated as“Naksha Zeem” for the final allocation of lands between the parties.According to him, thereafter the Assistant Collector had passed the orderon 31.07.1982 accepting the partition, and the appeal against the saidorder preferred by Jagtar Singh before the Collector was dismissed on12.10.1982, and therefore the right of pre-emption even if had existed inBfavour of the plaintiff Jagtar Singh on the date of filing of the suits, didnot survive on the date of passing of the decrees in the civil suits on01.12.1982. He further submitted that the right of pre-emption under thePunjab Pre-emption Act, 1913 (hereinafter referred to as the ‘Pre-emptionAct’) is weak kind of right, and as per the settled legal position, theCright of pre-emption should not only exist on the date of filing of the suits,but has to subsist on the date of passing of decree also. Mr. Hooda hasplaced reliance on the decisions of the Punjab and Haryana High Courtin Har Devi vs. Ram Jas and Others (1974 PLJ 345); Lala Ram vs.The Financial Commissioner, Haryana (1991 SCC Online P&H1105); Pritam Singh Vs. Jaskaur Singh (1992 SCC Online P&HD676) and Munshi vs. The Financial Commissioner, Haryana,Chandigarh (1993 SCC Online P&H 1086) to buttress hissubmissions.

4. Per contra, the learned senior counsel, Mr. Rajiv Bhallaappearing for the respondent repelling the submissions made on behalfEof the appellants submitted that as per Section 121 of the Revenue Act,the partition comes into effect one date to be notified by the AssistantCollector in the instrument of partition and not on the date of preparationof “Naksha Be” or “Naksha Zeem”. According to him, the said date issignificant for the purpose of determining the liability of the parties toFpay the revenue and also for recording the ownership rights in the recordof rights. Mr. Bhalla relied upon the various proformas contained in theHaryana Land Records Manual, 2013 to submit that the partition andseverance of status of the co-sharer could be notified by the AssistantCollector only in accordance with Section 121 of the Revenue Act and

Clauses 18.12 to 18.14 of the Manual. Distinguishing the judgments reliedGupon by the learned senior counsel Mr. Hooda for the appellants, learnedsenior counsel, Mr. Bhalla submitted that in the said cases, the status ofco-sharer had come to an end on the date set out in the instrument ofpartition, whereas in the instant case neither the instrument of partitionwas prepared, nor the date was determined by the Assistant CollectorHas per Section 121 of the Revenue Act, and therefore it could not be said

that the proceedings of partition had stood concluded before the date ofdecrees passed in the suits. Placing reliance upon the judgment of thisCourt in case of Bishan Singh & Others vs. Khazan Singh & Another[1]he submitted that the right of pre-emption is right of substitution andnot right of re-purchase and therefore the plaintiff was not required tochallengein the suits, the sale deeds executed in favour of the appellants-defendants.

5. For the better appreciation of the rival contentions raised bythe learned counsel for the parties, it would be beneficial to refer tosome of the provisions contained in the Pre-emption Act and the RevenueAct. Section 4 of the Pre-emption Act pertains to the right of pre-emptionwhich reads as under:

“4. Right of pre-emption application of - The right of pre-emption shall mean the right of person to acquire agriculturalland or village immoveable property or urban immoveable propertyin preference to other persons, and it arises in respect of suchland only in the case of sales and in respect of such property onlyin the case of -sales or of foreclosures of the right to redeem suchproperty.

Nothing in this section shall prevent Court from holding thatan alienation purporting to be other than sale is in effect sale.”

6. Section 15 deals with vesting of right of pre-emption in favourof certain categories of persons. The relevant part thereof is reproducedas under: -

“15.Persons in whom right of pre-emption vests in respect ofsales of agricultural land and village immovable property ~

(1)The right of pre-emption in respect of agricultural land andvillage immovable property shall vest-

(b) Where the sale is of share out of joint land or propertyand is not made by all the co-sharers jointly, -

First, in the sons or daughters or sons’ sons or daughters’sons of the vendor or vendors;

Secondly, in the brothers or brother’s sons of the vendor orvendors;

Thirdly, in the father’s brother or father’s brother’s sons ofthe vendor or vendor’s;

Fourthly, in the other co-shares;

Fifthly, in the tenants who hold under tenancy of the vendoror vendor the land or property sold or part thereof;

(c)…….”

7. The procedure for giving notice to the pre-emptor has been laiddown in Section 19 and the procedure for giving notice by the pre-emptorto the vendor has been laid down in Section 20. Section 21 of the Pre-Cemption Act states that any person entitled to right of pre-emptionmay, when the sale or foreclosure has been completed, bring suit toenforce that right.

8. So far as the provisions contained in the Punjab Land RevenueAct, are concerned, Chapter IX thereof pertains to the “Partition”. AsDper Section 111 thereof, the application for partition could be made byany joint owner of land or any joint tenant of tenancy in which rightof occupancy subsists, to the Revenue Officer in the circumstancesmentioned therein. The procedure to be followed by the Revenue Officeron receiving the application under Section 111 is laid down in Sections113 to 120.E

9. Section 118 pertaining to the disposal of other questions and tothe Appeal reads as under: -

“118. Disposal of other question: -(1) When there is questionas to the property to be divided, or the mode of making partition,the Revenue-officer shall, after, such injury as he deems necessary,Frecord an order stating his decision on the question and his reasonsfor the decision.

(2) An appeal may be preferred from an order under sub-section(1) within fifteen days from the date thereof, and, when such anappeal is preferred and the institution thereof has been certifiedGto the revenue-officer by the [authority to whom the appeal hasbeen preferred] the Revenue-officer shall stay proceeding pendingthe disposal of the appeal.

H(4)……”

10. Section 121 which pertains to the instrument of partition, beingrelevant for our purpose is reproduced as under:

“121. Instrument of partition: - When partition is completed,the Revenue-officer shall cause an instrument of partition to beprepared, and the date on which the partition is to take effect tobe recorded therein.”

11. Section 123 pertains to the affirmation of partition made withoutthe intervention of the Revenue Officer which reads as under:

“123. Affirmation of partition privately affected: - (1) In anycase in which partition has been made without the interventionof Revenue-officer, and party thereto may apply to Revenue-officer for an order affirming the partition.

(2) On receiving the application, the Revenue-officer shall inquireinto the case, and, if he finds that the partition has in fact beenmade, he may make an order affirming it and proceed under section119, 120, 121 and 122, or any of those sections, as circumstancesmay require, in the same manner as if the partition had been madeon an application to himself under this Chapter.”

12. At the outset, it may be noted that the plaintiff Jagtar Singh,the predecessor of the present respondent, had filed the suits claiminghimself to be the co-sharer in the joint khewat along with the vendor JitSingh, and had sought relief against the defendant Jhabbar Singh andothers with regard to the possession of the suit lands, on the ground thathe as co-sharer had superior right to pre-empt the sales, and that hewas not put to any notice of sale of the suit lands on or before the dateof such sales. In very loosely drafted plaint, the plaintiff had neitherpleaded as to how he was the co-sharer, nor had he impleaded the saidJit Singh, the owner of the suit lands, with whom he claimed to be theco-sharer, and who had sold the suit lands to the defendants JhabbarSingh and Others. It is needless to say that in suit for pre-emption, thevendor i.e., the owner of the suit land who had allegedly not given anynotice of sale to the plaintiff as required to be given under Section 19 ofthe Pre-emption Act and against whom the right to pre-empt the sale isclaimed would be proper party if not necessary party, for completeand final adjudication on the issues involved in the suit.

13. As held by this Court in U.P. Awas Evam Vikas Parishad vs.Gyan Devi[2], necessary party is one without whom no order can be

Amade effectively; and proper party is one in whose absence an effectiveorder can be made but whose presence is necessary for complete andfinal decision on the question involved in the proceedings. When rightto pre-empt the sale was claimed by the plaintiff Jagtar Singh as co-sharer in the lands alongwith the owner Jit Singh, alleging that themandatory provisions contained in Section 19 i.e., for giving notice to theBpre-emptor, was not complied with by the owner or seller Jit Singh, hispresence as the party defendant was desirable along with the otherdefendants Jhabbar Singh and Others, to effectively and finally decidethe disputes between the parties. Though, Order I, Rule 9 states that nosuit shall be defeated by reasons of the misjoinder or non-joinder of parties,Ccare must be taken by the court to ensure that all the parties, be it theplaintiff or the defendant, whose presence is necessary for complete andfinal adjudication on the issues involved in the suit, are before the court.That is the reason why the courts are empowered to strike out or addparties, at any stage of the proceedings as per Order I, Rule 10, C.P.C.D14. Further, having regard to the absolutely sketchy and looselydrafted plaint in the instant case, the Court is tempted to regurgitate thebasic and cardinal rule of pleadings contained in Order VI, Rule2(1) ofthe Code, according to which every pleading (i.e., plaint or writtenstatement) has to contain statement in concise form of the materialfacts on which the party pleading relies for his claim or defence, as theEcase may be. Of course, the pleading need not contain the evidence bywhich such material facts are to be proved, nonetheless the factsnecessary to formulate complete cause of action i.e., the materialfacts must be stated. Omission of single material fact would lead to anincomplete cause of action and in that case, the statement of claim wouldFbecome bad in the eye of law.

15. Now, so far as the right of pre-emption is concerned, it maybe noted that it is very weak right and could be defeated by all legitimatemethods. This Court as back as in 1958, in case of Bishan Singh andOthers vs. Khazan Singh & Another (supra), had set-forth the contoursGof the right of pre-emption. It was opined therein by the four-JudgeBench that-

“11…..The right of pre-emption is not right to the thing sold buta right to the offer of thing about to be sold. This right is calledthe primary or inherent right. (2) The pre-emptor has secondaryHright or remedial right to follow the thing sold. (3) It is right of

substitution but not of re-purchase i. e., the pre-emptor takes theentire bargain and steps into the shoes of the original vendee. (4)It is right to acquire the whole of the property sold and not ashare of the property sold. (5) Preference being the essence ofthe right, the plaintiff must have superior right to that of thevendee or the person substituted in his place. (6) The right beinga very weak right, it can be defeated by all legitimate methods,such as the vendee allowing the claimant of superior or equalright being substituted in his place.”

16. The afore-stated position was reiterated by this Court in BarasatEye Hospital vs. Kaustabh Mondal[3], and again in the recent decision incase of Raghunath (Dead) by LRs. vs. Radha Mohan (Dead) ThroughLRs. And Others[4],wherein it has been observed as under: -

“14. We have given our thoughtful consideration to the aforesaidissue and in order to determine the same, we had, at the inceptionitself, set out the judgment in Barasat Eye Hospital case [BarasatEye Hospital v. Kaustabh Mondal, (2019) 19 SCC 767 : (2020)4 SCC (Civ) 810] . We have, thus, referred to the earlier judicialview in para 10 of the judgment extracted aforesaid. The historicalperspective of the right of pre-emption shows that it owes itsorigination to the advent of the Mohammedan rule, based oncustoms, which came to be accepted in various courts largelylocated in the north of India. The pre-emptor has been held by thejudicial pronouncements to have two rights. Firstly, the inherentor primary right, which is the right to the offer of thing about tobe sold and the secondary or remedial right to follow the thingsold. It is secondary right, which is simply right of substitutionin place of the original vendee. The pre-emptor is bound to showthat he not only has right as good as that of the vendee, but it issuperior to that of the vendee; and that too at the time when thepre-emptor exercises his right. In our view, it is relevant to notethis observation and we once again emphasise that the right is a“very weak right” and is, thus, capable of being defeated by alllegitimate methods including the claim of superior or equal right.”

17. At this juncture, it would be also apt to mention that apartfrom the fact that the right of pre-emption is very weak right and capable

3 (2019) 19 SCC 767

4 (2021) 12 SCC 501

DEFG

Aof being defeated by all legitimate methods, the pre-emptor must establishthat he had the right to pre-empt on the date of sale, on the date of thefiling of the suit and on the date of the passing of the decree by the Courtof the first instance. The pre-emptor or the claimant-plaintiff who claimsthe right to pre-empt the sale on the date of sale, has also to prove thatsuch right continued to subsist till the passing of the decree of the firstBcourt. If the claimant-plaintiff loses that right or the vendee improves hisright equal or above the right of the claimant before the adjudication ofthe suit, the suit for pre-emption would fail.18. This proposition of law has been well settled by this Courtsince 1971, in case of Bhagwan Das (Dead) by LRS and Others vs.CChet Ram[5]. In the said case, this Court had approved the full benchdecision of Punjab High Court in Ramji Lal and Another vs. The Stateof Punjab and Others[6], which had ruled that pre-emptor must maintainhis qualification to pre-empt upto the date of the decree.

19. The Constitution Bench in case of Shyam Sunder and OthersDvs. Ram Kumar and Another[7]also while examining the issues whetherin suit for pre-emption, the pre-emptor should possess his right to pre-empt on the date of sale and on the date of the decree of the First Court,and whether the loss of that right after the date of decree either by hisown act or by an act beyond his control or by any subsequent change inEthe legislation which is prospective in operation during the pendency ofthe appeal filed against the decree of the Court of First instance, wouldaffect the right of the pre-emptor or not, has laid down certain principles,after making analysis of various decisions including the decision of theFull Bench rendered by the Punjab and Haryana High Court in RamjiLal vs. State of Punjab (supra).F

“10. On an analysis of the aforesaid decisions referred to in firstcategory of decisions, the legal principles that emerge are these:

1. The pre-emptor must have the right to pre-empt on the date ofsale, on the date of filing of the suit and on the date of passing ofGthe decree by the Court of the first instance only.

2. The pre-emptor who claims the right to pre-empt the sale onthe date of the sale must prove that such right continued to subsist

5 1971 (1) SCC 126 AIR 1966 P&H 374H7 (2001) 8 SCC 24

till the passing of the decree of the first court. If the claimantloses that right or vendee improves his right equal or above theright of the claimant before the adjudication of suit, the suit forpre-emption must fail.

3. pre-emptor who has right to preempt sale on the date ofinstitution of the suit and on the date of passing of decree, the lossof such right subsequent to the decree of the first court would notaffect his right or maintainability of the suit for pre- emption.

4. pre-emptor who after proving his right on the date of sale, onthe date of filing the suit and on the date of passing of the decreeby the first court, has obtained decree for preemption by theCourt of first instance, such right cannot be taken away bysubsequent legislation during pendency of the appeal filed againstthe decree unless such legislation has retrospective operation.”

20. In the light of the afore-stated legal position, let us examinewhether the pre-emptor i.e., plaintiff Jagtar Singh had established hissuperior right of pre-emption all through out from the date of the executionof the sale deeds by the original owner – vendor Jit Singh, till the date offiling of the suit as also till the date of passing of the decree by the courtof the first instance.

21. Recapitulating the facts, it appears that the said plaintiff JagtarSingh, the predecessor of the present respondent, had filed the suits on06.04.1981 claiming his superior right to pre-empt the sale on the groundof being co-sharer in the joint Khewat alleging inter-alia in the plaintthat the original owner of the suit lands Jit Singh had executed theregistered sale deeds on 07.04.1980 and 24.04.1980 in favour of thedefendants Jhabbar Singh and others, predecessors of the presentappellants, without giving any notice to the plaintiff. Since it was notdisputed that the plaintiff Jagtar Singh was the co-sharer in the jointKhewat as per the Jamabandi for the year 1978-1979 (exhibit P-1), itcould be safely held that the plaintiff had the right of pre-emption on thedate of execution of the sale deeds in question and also on the date offiling of the suits.22. However, the core issue that has fallen for consideration beforeus is, whether the plaintiff Jagtar Singh had the right to pre-empt on thedate of passing of the decree by the trial court i.e. on 01.12.1982.

23. As stated earlier, pending the suits, the defendant JhabbarSingh had filed Partition case being no. 78/TP in respect of lands inquestion before the Assistant Collector, in which the plaintiff Jagtar Singh

Ahad filed his objections. The Assistant Collector vide the order dated25.05.1982 had rejected the objections of Jagtar Singh and had listed thecase on 31.05.1982 for the objections as to the “Naksha Be”, whichwas already prepared and annexed to the file. As transpiring from therecord, on 31.07.1982, the Assistant Collector in presence of the partiesprovided for the passage and the boundaries of the plots, and passed theBorder giving details of partition as per the “Naksha Be”, mentioning as towhich of the khasara numbers would be allotted to Jhabbar Singh andwhich to Jagtar Singh.

24. The trial court after discussing various decisions of the Punjaband Haryana High Court held that the Khewat in dispute had remainedCno more joint as per the order dated 31.07.1982passed by the AssistantCollector, and that the plaintiff had lost his status of co-sharer on thatdate. Therefore, according to the trial court, the plaintiff did not possessthe status of the co-sharer on the date of decree. The First AppellateCourt in the appeals preferred by the plaintiff Jagtar Singh, also whileDconfirming the judgments and decrees passed by the trial court anddismissing the appeals of the plaintiff held vide judgment and decreedated 08.04.1983 that the joint relationship between the parties had cometo an end as soon as the order dated 31.07.1982 was passed by theAssistant Collector, and that the plaintiff had ceased to be the co-sharerin the land in dispute.E

25. However, the High Court in the Second appeals preferred bythe original plaintiff Jagtar Singh reversed the concurrent findings recordedby the two courts below and allowed the second appeals, holding interalia that on the date of the passing of the decree, no instrument ofpartition was drawn by the Revenue Officer, and therefore it could notFbe said that the joint status of the parties had come to an end or that theplaintiff had lost his superior right of pre-emption. The High Court whilepassing the impugned order had followed its earlier judgment in PritamSingh vs. Jaskaur Singh[8].

26. In our opinion, it is difficult to subscribe the view taken by theGHigh Court in the impugned order that since no instrument of partitionwas drawn on the date of passing of the decree by the trial court, thejoint status of the parties had not come to an end. Having duly consideredthe provisions contained in the Punjab Land Revenue Act and also theHaryana Land Records Manual placed on record by the learned counsel

H8 1992 SCC online P&H 676

for the parties, it clearly emerges that as per Section 118 of the LandRevenue Act, when there is question as to the property to be divided,or the mode of making partition, the Revenue Officer after such inquiryas he deems necessary, is required to record an order stating his decisionon the question and record his reasons for the decision. Sub section 2 ofSection 118 provides for an appeal to be preferred from decision of theRevenue Officer on the question of property to be divided, or the modeof making the partition. As such, there is no further appeal providedagainst the order in appeal passed under Section 118(2) of the LandRevenue Act. Section 119 deals with the administration of the propertyexcluded from partition referred to in Clause 2 of Section 112, with whichwe are not concerned. Section 120 deals with the provisions with regardto the distribution of revenue and rent after the partition.27. The relevant Section 121 states that when the partition iscompleted, the Revenue Officer shall cause an instrument of partition tobe prepared, and the date on which the partition is to take effect to berecorded therein. If the said provision contained in Section 121 is closelyread, it clearly appears that it deals with the procedure to be followed bythe Revenue Officer, after the partition is completed. Meaning thereby,the Revenue Officer after the Partition is completed, has to cause aninstrument of partition to be prepared and record therein the date onwhich the partition is to take effect. Therefore, when the inquiry ascontemplated in Section 118 on the question as to the property to bedivided, or the mode of making partition is made by the Revenue Officer,and an order stating his decision on the question along with the reasonsfor such decision is passed, the partition is deemed to have completed,subject to the decision of appeal that may be preferred against suchorder as contemplated in sub-section 2 of Section 118.

28. It is pertinent to note that Section 117 of the Punjab LandRevenue Act confers discretion upon the Revenue Officer to decide thequestion as to the title in any property of which the partition is sought,either by himself or to refer the question to be determined by thecompetent court. Thus, the jurisdiction of the Revenue Officer in thecases of partition is concurrent with that of the civil court. Therefore,for the purpose of interpreting Section 121 of the Land Revenue Act,the Court can safely draw an analogy from the provisions contained inOrder XX, Rule 18 C.P.C. which pertain to the procedure to be followedon the passing of the decree for the partition of the property. The saidprovision reads as under :-

“18. Decree in suit for partition of property or separatepossession of share therein.—Where the Court passes adecree for the partition of property or for the separate possessionof share therein, then,—

(1) if and in so far as the decree relates to an estate assessed tothe payment of revenue to the Government, the decree shalldeclare the rights of the several parties interested in the property,but shall direct such partition or separation to be made by theCollector, or any gazetted subordinate of the Collector deputed byhim in this behalf, in accordance with such declaration and withthe provisions of section 54;

(2) if and in so far as such decree relates to any other immovableproperty or to movable property, the Court may, if the partition orseparation cannot be conveniently made without further inquiry,pass preliminary decree declaring the rights of the several partiesinterested in the property and giving such further directions asDmay be required.”

29. This Court in case of Shub Karan Bubna Alias Shub KaranPrasad Bubna v. Sita Saran Bubna and Others[9], had an occasion todeal with the said provisions contained in Order XX, Rule 18, and it wasobserved as under:-

“7. …. In suit for partition or separation of share, the court atthe first stage decides whether the plaintiff has share in the suitproperty and whether he is entitled to division and separatepossession. The decision on these two issues is exercise of ajudicial function and results in first stage decision termed asF“decree” under Order 20 Rule 18(1) and termed as “preliminarydecree” under Order 20 Rule 18(2) of the Code. The consequentialdivision by metes and bounds, considered to be ministerial oradministrative act requiring the physical inspection, measurements,calculations and considering various permutations/combinations/alternatives of division is referred to the Collector under RuleG18(1) and is the subject-matter of the final decree under Rule18(2).”

30. If the said analogy is applied to the provisions contained in thePunjab Land Revenue Act pertaining to the Partition, we are of the

opinion that when decision is taken by the Revenue Officer underSection 118 on the question as to the property to be divided and themode of partition, the rights and status of the parties stand decided andthe partition is deemed to have completed. At this stage, such decision isrequired to be treated as the “decree”. The consequential action ofpreparing the instrument of partition as contemplated in Section 121 ofthe Land Revenue Act would be only ministerial or administrative act tobe carried out to completely dispose of the partition case instituted beforethe Revenue Officer. Hence, once the decision on the property to bedivided and on the mode of partition is taken by the Revenue Officerunder Section 118, the joint status of the parties would stand severed onthe date of such decision, subject to the decision in appeal if any preferredby the party. The consequential action of drawing an instrument ofpartition would follow thereafter. Hence, merely because the instrumentof partition was not drawn, it could not be said that the partition was notcompleted or that the joint status of the parties was not severed.

31. The first part of Section 121 of the Land Revenue Act statesthat “when partition is completed”. Meaning thereby, when the issuewith regard to the properties to be divided and the mode of makingpartition stand decided and rights of the parties stand determined by theRevenue Officer, the latter part of Section 121 for preparing theinstrument of partition and recording the date of partition would comeinto play. Such actions required to be taken as contained in the latter partof Section 121, would be only an executory work or administrative act tobe carried out for completely disposing of the partition case instituted bythe party before the Revenue Officer. Just as in case of decree in civilsuit, the adjudication conclusively decides the rights of the parties withregard to the matter in controversy, however the decree would bepreliminary when further proceedings have to be taken before the suitcan be completely disposed of. In the same way, when the decision istaken by the Revenue Officer under Section 118, the partition wouldstand completed, the joint status of the parties would stand severed andwould remain no more joint, after the period of limitation prescribedunder the Act. The further proceeding to draw an instrument of partitionwould be only an executory or ministerial work to be carried out tocompletely dispose of the partition case.

32. So far as the facts of the present case are concerned, theAssistant Collector i.e., concerned Revenue Officer vide the order dated

A25.05.1982 had rejected the objections raised by the plaintiff Jagtar Singhand others with regard to the mode of partition and had confirmed themode of partition accordingly. On that day, the “Naksha Be” was alreadyannexed to the file and the case was listed on 31.05.1982 for hearing theobjections as to the “Naksha Be”. On 31.07.1982, the Assistant CollectorBpassed the order stating inter alia that the Patwari and Kanungo werepresent, and they had explained the parties about the passage and theboundaries of the plots, and that as per “Naksha Be”, the partition wasaccepted. The details of the number of khasras allotted to both the partiesi.e., to Jhabbar Singh and others and to Jagtar Singh were also mentionedin the said order. The partition having been accepted as per the saidC“Naksha Be”, the joint status of the parties had stood severed. Of course,the said order dated 31.07.1982 was challenged by the plaintiff JagtarSingh by way of an appeal before the Collector who vide the orderdated 12.10.1982 had dismissed the same. The said order of Collectorwas further challenged by the said Jagtar Singh by filing revisionDapplication before the Commissioner. Though, the Commissioner hadinitially granted stay against the operation of the order dated 31.07.1982upto 16.11.1982, admittedly the said stay was not further extendedthereafter. Under the circumstances, the joint status of the parties hadcome to an end on 31.07.1982, when the Assistant Collector passed theorder and when the same was confirmed by the Collector on 19.10.1982.EThe trial court and the appellate court, under the circumstances, hadrightly held that the plaintiff Jagtar Singh did not possess the status ofco-sharer on the date of decree i.e., on 01.12.1982, and that his right ofpre-emption had not survived till the date of passing of the decree in thesuits. In our opinion, the High Court had grossly erred in misinterpretingFthe provisions of Punjab Pre-emption Act and of Land Revenue Act,and in setting aside the judgments and decrees passed by the trial courtand the appellate court.

33. In that view of the matter, the impugned common order passedby the High Court deserves to be quashed and set aside and is accordinglyGset aside. Both the appeals stand allowed accordingly.

Nidhi Jain(Assisted by : Bhavyata Kapoor and Rakhi, LCRAs)

Appeals allowed.