Ram Kishan vs Daya Nand(D)Thr. Lrs

NON-REPORTABLE 2023 INSC 926 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2023 (arising out of SLP (C) No. 30335 of 2018)

RAM KISHAN & ANOTHER ..... APPELLANT(S)

VERSUS

DAYA NAND(D)THR. LRS & OTHERS ..... RESPONDENT(S)

WITH

CIVIL APPEAL NO. OF 2023 (arising out of SLP (C) No. 31904 of 2018)

O R D E R

Leave granted.

The present appeals take exception to the common judgment

dated 31.08.2018 passed by the High Court of Punjab & Haryana at

Chandigarh in R.S.A. No. 2241 of 1991 titled “Ram Kishan and

another v. Daya Nand and others” and R.S.A. No. 2242 of 1991 titled

“Siri Bhagwan and others v. Daya Nand and others”.

The High Court by the impugned judgment has upheld the

judgment of the first appellate court, decreeing the suit for

pre-emption filed by the plaintiffs, Daya Nand (deceased) and

others. Aggrieved, the defendant - purchasers, Ram Kishan and Signature Not Verified

another; and Siri Bhagwan and others have preferred the present Digitally signed by SWETA BALODI Date: 2023.10.18 17:28:31 IST Reason:

appeals. Trial court vide judgment dated 31.10.1990 had dismissed

the suits.

2

The impugned judgment is predicated on the legal position

that status of co-sharers ceases to exist only after the final

partition is affected on the execution of the instrument of

partition under Section 121 of the Punjab Land Revenue Act, 1887 1,

an enactment also applicable to the State of Haryana. This view and

legal position are erroneous.

In the recent decision in “Jhabbar Singh (Deceased) Through

Legal Heirs and Others v. Jagtar Singh”2, this Court has laid down

two legal propositions:-

First, the Constitution Bench of this Court in case of “Shyam

Sunder and Others v. Ram Kumar and Another”3 has held that for

exercise of right of pre-emption, the pre-emptor should possess the

right to pre-empt on the date of sale, and also on the date of the

decree by the court of the first instance.

Secondly, joint status ceases when an order for division of

the property under Section 118 of the Revenue Act is passed.

Analogy is drawn from the provisions of Order XX, Rule 18, Sub Rule

1 of the Code of Civil Procedure, 1908, as the preliminary decree

of the partition decides the share and entitlement to division and

separate possession. Consequential division by metes and bounds,

are ministerial or administrative acts requiring physical

inspection, measurements, calculations and consideration of various

permutations, combinations or alternatives of division. The date on

which the order under Section 118 of the Revenue Act is passed or

the Naksha Bey is directed, is the date of partition. The rights

1 For short “the Revenue Act” 2 (2023) SCC OnLine SC 431 3 (2001) 8 SCC 24 3

and status of the parties stands decided. The joint status is

severed on the date of the decision. The date on which an order

under Section 121 of the Revenue Act is passed or Naksha Zeem is

prepared and deed of partition is registered, is the follow up

action, and not the date of actual partition.

According to the admitted facts of the present case: -

(i) Sale deed by respondent no. 5 – Rajinder, the co-owner, in

favour of appellant no. 1 – Ram Kishan and appellant no.2 –

Jit Singh, the appellants in SLP (C) 30335/2018, was executed

on 26.10.1988;

(ii) Sale deed by Rajinder, the co-owner, in favour of appellant

no. 1 – Siri Bhagwan, appellant no.2 – Sunil and appellant

no.3 - Anil, the appellants in SLP (C) 31904/2018 was executed

on 29.11.1988;

(iii) An order under Section 118 of the Revenue Act, Naksha Bey,

was passed on 16.01.1989;

(iv)The suit for decree of pre-emption, in fact, was dismissed by

the trial court vide judgment dated 31.10.1990.

(v) The first appellate court decreed the suit for pre-emption

vide judgment dated 03.10.1991.

(vi) The judgment of the first appellate court has been upheld by

the impugned judgment of the High Court dated 31.08.2018.

As on the date, when the suits were dismissed by the trial

court on 31.10.1990, the order dated 16.01.1989 under Section 118

of the Revenue Act, Naksha Bey had been passed and prepared. Prayer

for pre-emption was decreed by the first appellate court on 4

03.10.1991.

For the purpose of the record, we will mention that

subsequently Naksha Zeem, that is, an order under Section 121 of

the Revenue Act was passed, and the deed of partition was

registered on 27.03.1992.

For the aforesaid reasons, the impugned judgment and decree

is set aside. Suit No. 7/1989 titled “Daya Nand and Others v. Siri

Bhagwan and Others” and Suit No. 8/1989 titled “Daya Nand and

Others v. Ram Krishan and Others”, which were filed before the

Court of Sub-Judge, Bahadurgarh, District Rohtak, Haryana, will be

treated as dismissed. Any amount deposited by the respondent(s),

can be withdrawn by them along with interest, if any, accrued

thereon. No order as to costs. The appeals are allowed in the above

terms.

Pending application(s), if any, shall stand disposed of.

..................J. (SANJIV KHANNA)

..................J. (S.V.N. BHATTI) NEW DELHI;

OCTOBER 10, 2023.