Jagmohan vs Badri Nath Kohli (Dead) Thr. Lrs.

2024 INSC 86 REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2024 (Arising out of SLP(C)No.18612 of 2015)

JAGMOHAN AND ANOTHER … Appellant(s)

VERSUS

BADRI NATH AND OTHERS … Respondent(s)

JUDGMENT

RAJESH BINDAL, J.

Leave granted.

2. The defendants are before this Court challenging the

concurrent findings of fact recorded by all the courts below.

3. It is a case in which the respondents had filed a suit 1

on 25.01.1984 for possession by pre-emption of the plot

measuring 719 square yards, situated at Light Railway Bazar, Signature Not Verified

Jagadhri (hereinafter referred to as ‘the property in dispute’). Digitally signed by Vijay Kumar Date: 2024.02.06 17:07:15 IST Reason: 1 Civil Suit No. 309 1 The Trial Court2 decreed the suit. The judgment and decree 3 of

the Trial Court was upheld upto the High Court 4.

4. The facts in brief are that the respondents (plaintiffs

in the suit) claimed themselves to be the tenants in the

property in dispute since 1949. The property in dispute was

owned by Anarkali and others. The same was sold by the

owners thereof to the appellants (defendants in the suit) by

way of a registered sale-deed dated 25.01.1983. The

respondents filed the suit exercising their right of pre-emption

of the sale claiming that in terms of the provisions of the 1913

Act5, they had preferential right to purchase the property. They

offered to pay same sale consideration of ₹43,000/-. The Trial

Court decreed the suit subject to payment of ₹50,238/- to the

vendee after deducting 1/5th of the pre-emption amount

deposited in the Court at the time of filing of the suit. The

amount so directed by the Trial Court was including stamp duty,

registration fee and miscellaneous expenses incurred on

registration of the sale-deed6.

2 Additional Senior Sub Judge, Jagadhri 3 Judgment and decree dated 27.05.1989 4 High Cour of Punjab and Haryana at Chandigarh 5 The Punjab Pre-emption Act, 1913 6 Sale-deed dated 25.01.1983

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5. Challenging the judgment of the High Court, learned

counsel for the appellants submitted that in view of the

notification 08.10.1985, issued by the State in exercise of

powers under section 8(2) of the 1913 Act, the suit filed by the

respondents deserved to be dismissed as the right of pre-

emption did not exist for sale of land falling in the areas of any

municipality in Haryana. It is not a matter of dispute that the

sale in question was pertaining to the property located within

the municipal limits of Jagadhri (State of Haryana). In terms of

the Constitution Bench judgment of this Court in Shyam

Sunder and others v. Ram Kumar and another 7, the right

of pre-emption has to exist on the date of registration of the

sale-deed, on the date of filing of suit and also on the date the

same is decreed by the first Court. In the case in hand, no

doubt, the suit was pending when the aforesaid notification was

issued, however, the Trial Court had decided the same on

27.05.1989, hence the decree could not have been passed. The

courts below have failed to appreciate that aspect of the

matter.

6. He further submitted that the sale deed was

registered in favour of the appellants on 25.01.1983, the suit 7 (2001) 8 SCC 24

3 having been filed on 25.01.1984 was time-barred as the

limitation thereof is one year, which expired on 24.01.1984. It

was further argued that the courts below have wrongly

appreciated the issue regarding the custom of pre-emption

prevailing in the area. It was not a matter of dispute that the

area in which the property is situated, falls within the extended

area of municipal limits of Jagadhri. Though some evidence was

led pertaining to the custom prevailing in the urban area of

municipal limits of Jagadhri, however, for the extended area, no

evidence was produced. In terms of the judgment of the High

Court in Sandeep Bansal v. M. L. Hans and others 8,

decided on 24.08.2009, the same custom cannot be relied upon

for any transaction of sale in the extended area.

7. On the other hand, learned counsel for the

respondents submitted that though issue of limitation was

raised by the appellants before the Trial Court, however, the

same was not seriously contested for the reason that the suit

filed by the respondents was within limitation. The Schedule

attached to the 1963 Act 9 provides for a period of one year for

filing of suit for pre-emption. If the same is read along with

8 R.S.A. No. 2109 of 1998 9 The Limitation Act, 1963 4 Section 12 of the aforesaid Act, in terms of which the date of

registration of sale deed is to be excluded, the suit filed by the

respondents was within limitation. It was for this reason that

the appellants did not press the aforesaid issue before the

lower Appellate Court10 or the High Court.

8. It was further submitted that the notification dated

08.10.1985, as is sought to be relied upon by the appellants,

will not be applicable in the case in hand. From a perusal

thereof, it is evident that the exemption is only with reference

to sale of land within the municipal area. In the case in hand, it

is not the sale of land, rather immovable property in the form of

a rolling mill, which cannot be termed to be land. The aforesaid

notification has been issued in exercise of powers under Section

8(2) of the 1913 Act which enables the State Government to

exclude any transaction of sale of any land or property or class

of land or property for exercise of right of pre-emption. The

right to the respondents flows from Section 16 of the 1913 Act

which provides that right of pre-emption in respect of urban

immovable property vests in the tenant. The term ‘urban

immovable property’ has been defined in Section 3(3) of the

1913 Act to mean immovable property within the limits of town, 10 Additional District Judge, Yamuna Nagar at Jagadhri

5 other than agricultural land. Section 3(1) thereof defines any

agricultural land to mean land as defined in 1900 Act 11. Section

3(2) defines ‘village immovable property’ to mean immovable

property within the limits of a village, other than agricultural

land.

9. The expression ‘land’ is defined in 1900 Act to mean

the land which is not occupied by site of any building in a town

or village and is occupied or let out for agricultural purposes or

for purposes subservient to agriculture. He also referred to the

definition of ‘immovable property’, as provided for in Section

3(26) of the 1897 Act12. As the sale in the case in hand was

pertaining to not the land situated within the municipal limits

but of a constructed area which was being used a rolling mill,

the exemption as granted vide notification dated 08.10.1985

will not be applicable in the case of the appellants. Very fairly,

he did not dispute the proposition of law as laid down by the

Constitution Bench of this Court in Shyam Sunder and

others’ case (supra). However, he submitted that the same

will not be applicable in the facts and circumstances of the case

11 Punjab Alienation of Land Act, 1900 12 The General Clauses Act, 1897 6 as the notification does not come to the rescue of the

appellants.

10. Heard learned counsel for the parties and perused

the relevant referred record.

11. The relevant provisions of the 1900 Act and 1913 Act

are extracted below:

“Sections 3(1) (2) and (3), 8, 15 and 16 of the Punjab Pre-emption 1913 Act

3. Definitions. - In this Act, unless a different intention appears from the subject or context, -

(1) ‘agricultural land’ shall mean land as defined in Punjab Alienation of Land Act, 1900 (XIII of 1900) (as amended by act, 1 of 1907), but shall not include the rights of a mortgage, whether usufructuary or not in such land:

(2) ‘village immovable property’ shall mean immovable property within the limits of a village, other than agricultural land:

(3) ‘urban immovable property’ shall mean immovable property within the limits of town, other than agricultural land. For the purposes of this Act a specified place shall be deemed to be a town (a) 7 If so declared by the State Government by notification in the Official Gazette or (b) if so found by the Courts:

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8. State Government may exclude areas from pre-emption- (1) Except as may otherwise

be declared in the case of any agricultural land in a notification by the State Government, no right of pre-emption shall exist within any cantonment.

(2) The State Government may declare by notification that in any local area or with respect to any land or property or class of land or property or with respect to any sale or class of sales, no right of pre-emption or only such limited right as that the State Government may specify, shall exist.

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15. Persons in whom right of pre-emption vests in respect of sales of agricultural land and village immovable property. (1) The right of pre-emption in respect of agricultural land and village immovable property shall vest-

(a) where the sale is by sole owner-

First, in the son or daughter or son’s son or daughter’s son of the vendor;

8 Secondly, in the brother or brother’s son of the vendor;

Thirdly, in the father’s brother or father’s brother’s son of the vendor;

Fourthly, in the tenant who holds under tenancy of vendor the land or property sold or apart thereof.

(b) Where the sale is of a share out of joint land or property 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 bother’s sons of the vendor or vendors;

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

Fourthly, in the other co-sharer’s;

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

(c) where the sale is of land or property owned jointly and is made by all the co-sharers jointly-

First, in the sons or daughters or son’s sons or daughter’s sons of the vendors;

Secondly, in the brothers or bother’s sons of the vendors;

9 Thirdly, in the father’s brother’s or father’s brother’s sons of vendors;

Fourthly, in the tenants who hold under tenancy of the vendors or any one of them the land or property sold or a part thereof.

(2) Notwithstanding anything contained in sub-

section (1):-

(a) where the sale is by a female of land or property to which she has succeeded through her father or brother or the sale in respect of such land or property is by the son daughter of such female after inheritance, the right of pre-emption shall vest:-

(i) if the sale is by such female in her brother or brother’s son:

(ii) if the sale is by the son or daughter of such female in the mother’s brother or the mother’s brother’s son of the vendor or vendors;

b. where the sale is by a female of land or property to which she has succeeded through her husband, or through her son in case the son has inherited the land or property sold from his father, the right or pre-emption shall vest-

First, in the son or daughter of such husband of the female;

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Secondly, in the husband’s brother or husband’s brother’s son of such female.

16. Person in whom right of pre-emption vests in an urban immovable property- The right of pre-emption in respect of urban immovable property shall vest in the tenant who holds under tenancy of the vendor the property sold or apart thereof.”

Section 2(3) of the 1900 of Punjab Alienation of Land Act, 1900

2. In this Act, unless there is anything repugnant in the subject or context, --

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(3) the expression “land” means land which is not occupied as the site of any building in a town or village and is occupied or let for agricultural purposes or for purposes subservient to agriculture or for pasture, and includes—

(a) the sites of buildings and other structures on such land;

(b) a share in the profits of an estate or holding;

(c) any dues or any fixed percentage of the land-revenue payable by an inferior land- owner to a superior land-owner;

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(d) a right to receive rent; and

(e) any right to water enjoyed by the owner or occupier of land as such:

12. The right of the respondents/tenants in the property

flows from Section 16 of the 1913 Act. It is not a matter of

dispute that the respondents were tenants in the property from

the year 1949 onwards where the rolling mill had been set up.

The term ‘urban immovable property’ has been defined in

Section 3(3) of the 1913 Act to mean immovable property

within the limits of town, other than agricultural land. Section

3(1) defines any agricultural land to mean land as defined in

1900 Act. The term ‘land’ as defined in Section 2(3) of the 1900

Act excludes any site of any building in a town or village.

Meaning thereby that the immovable property would be more

than the land only or the land on which the construction has

already been made. The fact that the property in dispute is

located in a municipal area of Jagadhri is not in dispute.

13. After coming to the conclusion that the property in

dispute on which right of pre-emption was sought to be

exercised by the respondents was an urban immovable

property, the only issue which requires consideration by this

12 Court is as to whether the exemption of pre-emption as granted

vide notification dated 08.10.1985 would be available to the

property in dispute.

14. A perusal of the notification shows that it has been

issued in exercise of powers conferred under Section 8(2) of the

1913 Act, which enables the State Government to declare by

notification either no right of pre-emption or only limited right

will exist in any local area or with respect to any land or

property or class of land or property. The notification provides

that right of pre-emption shall not exist in respect of sale of

land falling in the areas of municipalities in Haryana.

15. As we have already noticed above, the term ‘land’ as

such has not been defined in the 1913 Act as it is only the

agricultural land which is defined. If the aforesaid notification is

read with reference to the powers available with the State

Government to grant exemption from pre-emption, it is evident

that the same has been granted with reference to land only and

not the immovable property. The fact that Section 8(2) of the

1913 Act uses two terms independently, clearly suggests that

the land and the immovable property have different meanings.

It is evident even from the language of Section 15 of the 1913

13 Act, which also provides right of pre-emption in respect of

agricultural land and village immovable property. ‘Village

immovable property’ has been defined to mean immovable

property within the limits of a village other than the agricultural

land.

16. From the aforesaid provisions of the 1913 Act, if read

Scheme of the Act, it is abundantly clear that the land and the

immovable property are two different terms. The immovable

property is more than the land on which certain construction

has been made. Guidance can also be taken from the definition

of immovable property, as provided in Section 3(26) of the

1897 Act, which includes land, means something more than the

land.

17. As the notification dated 08.10.1985 limits its

application for taking away the right of pre-emption only with

reference to sale of land falling in the areas of any municipality,

the same will not come to the rescue of the appellants. In the

case in hand, admittedly it is sale of immovable property, which

is more than the land as a rolling mill had already been set up

on the land, which was in occupation of the respondents as

tenants.

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18. The issue regarding limitation for filing of the suit is

also misconceived if considered in the light of the facts of the

case, the provisions of the 1961 Act and also that the same was

not raised by the appellants before the lower Appellate Court or

the High Court.

19. For the reasons mentioned above, we do not find any

merit in the present appeal. The same is, accordingly,

dismissed.

…...………….……………..J. (C.T.RAVIKUMAR)

…...………….……………..J. (RAJESH BINDAL)

New Delhi February 06, 2024.

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