Summary
A co-sharer in a joint khewat sued in 1981 to pre-empt two 1980 sales of shares in the land. During the suits the vendees obtained partition before the Assistant Collector, whose order of 31 July 1982 accepting the partition was confirmed in appeal, though no instrument of partition had been drawn when the suits were dismissed on 1 December 1982. The High Court decreed the suits, holding that joint status survived until an instrument was prepared under Section 121 of the Punjab Land Revenue Act. The Supreme Court reversed: a pre-emptor must retain his right until the first court's decree; the partition is completed and joint status severed when the Revenue Officer decides the property to be divided and the mode of partition under Section 118; preparing the instrument under Section 121 is only ministerial. The plaintiff had ceased to be a co-sharer before the decree.
Issues
- Whether a pre-emptor claiming as a co-sharer must retain that status until the date of the decree of the court of first instance.
- Whether, under the Punjab Land Revenue Act, 1887, the joint status of co-sharers is severed when the Revenue Officer decides the mode of partition under Section 118, or only when an instrument of partition is prepared and a date fixed under Section 121.
Provisions considered
- Sections 4, 15(1)(b), 19 and 21, Punjab Pre-emption Act, 1913The right of pre-emption vests in co-sharers in the fourth category for sale of a share in joint land; it is a weak right of substitution defeasible by all legitimate methods, and must exist on the date of sale, of suit and of the first court's decree. (¶¶ 5, 6, 7, 15, 16, 17, 18, 19)
- Sections 111, 117, 118 and 121, Punjab Land Revenue Act, 1887On the Revenue Officer's reasoned decision under Section 118 on the property to be divided and the mode of partition, the partition is deemed complete and the parties' status severed, subject to appeal; Section 121, which opens with 'when a partition is completed', only prescribes the subsequent executory step of preparing the instrument and recording the date. (¶¶ 26, 27, 28, 30, 31)
- Order XX Rule 18; Order I Rules 9 and 10; Order VI Rule 2(1), Code of Civil Procedure, 1908By analogy with Shub Karan Bubna, the decision on rights in a partition is the judicial 'decree' and division by metes and bounds is ministerial; the Court also noted that the vendor was at least a proper party who should have been impleaded and that the plaint omitted material facts. (¶¶ 12, 13, 14, 28, 29, 30)
Held
- The right of pre-emption is a very weak right that can be defeated by all legitimate methods; the pre-emptor must have the right on the date of sale, of filing the suit and of the decree of the court of first instance, and if he loses it or the vendee improves his right before adjudication the suit must fail, as settled in Bhagwan Das v. Chet Ram and the Constitution Bench in Shyam Sunder v. Ram Kumar. (¶¶ 15, 16, 17, 18, 19)
- When the Revenue Officer, after inquiry under Section 118, records his decision on the property to be divided and the mode of partition, the partition is deemed completed and the joint status of the parties stands severed on that date, subject to appeal; the subsequent preparation of an instrument of partition under Section 121 is only an executory or ministerial act, so the absence of such an instrument does not keep the status joint. (¶¶ 26, 27, 30, 31)
- The Assistant Collector rejected the plaintiff's objections to the mode of partition on 25 May 1982 and accepted the partition as per the Naksha Be on 31 July 1982, which the Collector confirmed in appeal, and the revisional stay was not extended; the joint status thus ended before the decree of 1 December 1982, the plaintiff was no longer a co-sharer, and his right of pre-emption did not survive. The High Court misinterpreted both Acts in reversing the concurrent findings. (¶ 32)
- In a suit for pre-emption the vendor who allegedly gave no notice under Section 19 is a proper if not necessary party, and the court should ensure such parties are before it; pleadings must state all material facts constituting the cause of action. (¶¶ 12, 13, 14)
Result
Appeals allowed; common judgment of the High Court dated 17.08.2007 in the second appeals quashed and set aside, restoring the dismissal of the pre-emption suits by the trial court and first appellate court.