S.N. Aggarwal, J.@mdashNagina, respondent No. 3 was the owner of land comprised in Khewat No. 64, Khatauni No. 203, Kila No. 31/77(8-
0), 8(8-0), 9(8-0), 10/1(1-16), 13/2 (6-8), as per Jamabandi for the year 1981-82. Out of this land, Nagina sold Killa No. 341//8(8-0), 99(8-0),
10/1(1-10) and 13/2(6-8) to Pirthi and Harkesh respondents vide sale deed dated 7.7.1988 for which mutation No. 815 was sanctioned on
5.9.1988. Subsequently, Nagina respondent sold Killa No. 31//7 (8-0) of Khewat No. 64, Katauni No. 203 in favour of Maan Singh (now
deceased) (predecessor-in-interest of the appellants) vide sale deed 25.4.1989 for a sum of Rs. 70,000/-, 1/4th share in tubewell, electric motor
etc. was also sold along with it.
2. On this, Prithi and Harkesh respondents filed a suit for possession by way of preemption as co-sharers. Maan Singh (predecessor-in-interest of
the appellants) had filed written statement and contested the suit. Additional objections were also pleaded
3. Issues were framed by the learned trial Court.
4. In support of their case, Pirthi appeared as PW-1. He also proved copy of the Jamabandi for the year 1981-82, Exhibit P-1, copy of mutation
No. 815 Mark B and closed the evidence.
5. On the other hand, the appellants examined Mahavir Gupta, Deed Writer as DW-1, Maan Singh defendant himself appeared as DW-2. Desh
Raj attesting witness of the sale deed appeared as DW-3. The sale deed was also proved. A copy of the Jamabandi and copies of Khasra
Girdawaries were also proved.
6. On the basis of this evidence, and the Full Bench judgment of this Court reported as Bhartu v. Ram Sarup 1981 P.L.J. 204 the learned trial
Court held that Pirthi and Harkesh respondents had become co-sharers with Nagina. Accordingly, the suit of respondent Nos. 1 and 2 was
decreed by the learned trial Court vide judgment and decree dated 25.2.1991.
7. Mann Singh filed an appeal. In the meantime, the law of pre-emption was repealed and the learned Lower Appellate Court accepted the appeal
vide judgment dated 25.8.1995 on the basis of amended law of pre-emption. Pirthi and Harkesh filed Regular Second Appeal No. 2426 of 1995
in this Court which was accepted vide order dated 7-12-2004, relying upon the judgment of the Hon''ble Supreme Court reported as Shyam
Sunder and Another Vs. Ram Kumar and Another, . The matter was remanded by this Court to the learned Lower Appellate Court with the
direction to decide the appeal on merits. The learned Lower Appellate Court up-held the judgment of the learned trial Court and dismissed the
appeal vide judgment and decree dated 31.3.2005.
Hence, the present appeal.
8. The submission of learned Counsel for appellants was that Nagina was the exclusive owner of the land. He had sold specific Khasra numbers to
Pirthi and Harkesh respondents and by the said sale deed. Pirthi and Harkesh had become exclusive owners of those khasra numbers which were
sold to them by Nagina. Nagina had remained the exclusive owner of the remaining land which was subsequently sold by him to Maan Singh vide
sale deed dated 25.4.1989. Since respondent Nos. 1 and 2 were not co sharers with Nagina, therefore, these respondents have no right of pre-
emption. It was also submitted that the judgment of Hon''ble Full Bench in Bhartu''s case relied upon by the learned Counsel for the respondent
Nos. 1 and 2 does not apply to the facts of the present case.
9. On the other hand, the submission of learned Counsel for respondent Nos. 1 and 2 was that since they had purchased the land from Nagina out
of same khewat number and out of same Rectangle number, therefore, they had become co-sharers with Nagina and the case is squarely covered
by the judgment in Bhartu ''s case (supra).
10. After considering the submissions advanced before me, the following substantial questions of law arise:
1. Whether Nagina was the exclusive owner?
2. Whether Pirthi and Harkesh became co-sharers with Nagina after purchasing specific khasra numbers from Nagina because khewat
number/killa number were joint between them?
11. It is the admitted case of the appellants as also of the respondents that Nagina, was the exclusive owner of Khewat No. 64, Khatauni No.
203, Killa Nos. 32//7, 8, 9, 10/1 and 13/2. He was not a co-sharer with anybody else. In the jamabandi for the year 1981-82, Exhibit P-1,
Nagina is shown to be co-owner with his mother and sister but reference has also been made to mutation No. 755 for change in ownership.
However, in the jamabandi for the year 1986-87 Exhibit P-2 Nagina alone has been shown to be the owner of the land purchased by respondents
Nos. 1 and 2 vide sale deed dated 7-7-1988 and of the land purchased by Maan Singh vide sale deed dated 25.4.1989. It is, therefore, held that
Nagina was the exclusive owner of this land.
12. The submission of learned Counsel for the respondents was that after purchasing the suit property from Nagina vide sale deed dated 7.7.1988,
they had become co-sharers with Nagina. They were joint owners in the same Khewat and in the same Rectangle although their Khasra numbers
were separate. Reliance was placed on the judgment of the Hon''ble Full Bench in Bhartu''s case (supra).
13. This submission has been considered. It has no merits at all. The facts in Bhartu''s case were entirely different. In Bhartu''s case, the vendor
was a joint owner and a co-sharer. Moveover, the vendor had sold 21 square yards out of land measuring 4 Kanals 2 Marlas comprised in one
khasra number. The right of seeking partition had become available to the vendee and, therefore, the Hon''ble Judges of the Full Bench were
pleased to hold that the vendor will sell only that right which he had in the suit land. If the vendor was the exclusive owner, he would confer rights
of exclusive ownership on the land sold but if he was a joint owner/co-sharer, then he would confer rights of joint ownership on the vendee. Their
Lordships were pleased to observe in para No. 5 of the judgment as under:
The rights of a transferee from a co-owner are not entirely dependent on judicial decisions but are regulated by Section 44 of the Transfer of
Property Act which provides that where one or two or more co-owners of the immovable property legally competent in that behalf transfers his
share of such property or any interest therein, the transferee acquires as to such share or interest and so far as is necessary to give effect to the
transfer, the transferor''s right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same but
subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred. According to this statutory provision
also what transferee gets is the right of the transferor to joint possession and to enforce a partition of the same irrespective of the fact whether the
property sold is fractional share or specified portion, exclusively in possession of the transferor. Again, it cannot be disputed that when a co-sharer
is in exclusive possession of the specified portion of the joint holding, he is in possession thereof as a co-sharer and all the other co-sharers
continue to be in its constructive possession. By the transfer of that land by one co-owner, can it be said that other co-sharers cease to be co-
sharers in that land or to be in its constructive possession. The answer obviously would be in the negative because any of the other co-sharers can
either seek a declaration from the Court as held in Sukh Dev''s case (supra) that the vendee is in possession only as a co-sharer or can initiate
proceedings for partition of the joint holding including the land transferred. If the other co-sharers continue to be co-sharers in the land transferred
even though comprised of specific khasra numbers how can it be said that what is sold is something other than the share out of the joint holding.
That the sale of specific portion of land out of joint holding by one of the co-owners is nothing but a sale of a share out of the joint holding would
be further elucidated if we take the example of a sale where a co-owner sells the land comprised of a particular khasra number which is not in his
possession but is within his share in the joint holding.
From the facts of that case and from the observations made by their Lordships of the Hon''ble Full Bench reproduced above, it is clear that the
ratio of law laid down in Bhartu ''s case is not applicable to the facts of the present case,
14. The learned Counsel for the respondents also submitted that the judgment of this Court reported as Suraj Ram v. Birbal and Ors. (2001) 128
PLR 229 is applicable to the facts of this case. This judgment is again different on facts. In Suraj Ram''s case, the sale has been made by exclusive
owner. Therefore, even that case would not apply to the facts of the present case.
15. Rather, the facts of this case are more similar to the facts of the judgment reported as Inder Singh and Ors. v. Om Parkash and Ors. 1989
P.L.J. 754 as is clear from para No. 2 of the judgment which reads as under:
The undisputed facts are: Vas Dev was owner of land measuring 34 Kanals 3 marlas comprised in Khewat No. 240/327, Khatoni No. 395,
Rectangle No. 133, Killa Nos. 5, 6, 15 and Rectangle No. 134, Killa Nos. 10 and 11 as entered in Jamabandi Ex.P3 for the year 1981-82. He
transferred the land measuring 19 kanals 4 marlas comprised in Khewat No. 240/237, Khatoni No. 395, Rectangle No. 133, Killa Nos. 5(4-16),
6(6-18) and 15(7-10) vide sale deed dated January 18, 1984 to Om Parkash and others (hereinafter referred to as the plaintiffs) and vide sale
deed dated May 17, 1985, he sold the land measuring 14 kanals 18 marlas comprised in Khewat No. 240, Khatauni No. 395, Rectangle No.
134, Killa Nos. 10(8-0) and 11(6-18) to Inder Singh and others (hereinafter referred to as the vendees).
Dealing with the law of pre-emption, it was observed by this Court in Inder Singh''s case (supra) as under:
A co-sharer is the person, who has share in the community of interest whether the same is fixed or flexible along with others in a joint property held
by them ali. When land or property belongs to two or more persons jointly ana is undivided, each of them is a co-sharer with the other in the joint
property. The concept of joint property used in Section 15(1)(b) of the Act. presupposes that it belongs to a person or persons other than the
vendor. In the instant case, Vas Dev was the sole owner of land measuring 34 kanals 2 marlas. He transferred specified field numbers in Rectangle
No. 133 Killa Nos. 5(4-16), 6(6-18) and 15(7-10) to the plaintiffs vide sale deed January 18, 1984 and put them in possession thereof. He was
also owner of another Rectangle No, 134 bearing separate Killa numbers, namely 10(8-0) and 11(6-18) and transferred the same to the vendees
vide sale deed dated May, 17, 1985. The purchaser of a share of specified Killa numbers in specified Rectangle will not become a co-sharer in the
Khewat. The plaintiffs did not purchase an undivided share of the joint land Khata is equivalent to a Khewat and in the matter of finding out for the
exercise of preferential right of pre-emption, the status of the party as a co-sharer has to be seen in a Khata or Khewat. In the present case, the
plaintiffs are purchasers of specified field numbers in specified Rectangle only and not in the whole joint land and they will not be come co-sharers
in the Khewat or Khata. The word co-sharer'' in the context of pre-emption law denotes a person who holds a share or shares in the whole of the
property of properties of which another share or other shares were the subject matter of sale. The plaintiffs will thus not become co-sharers.
16. In the present case, Nagina was the exclusive owner. He had sold specified khasra numbers to respondent Nos. 1 and 2 and conferred rights
of exclusive ownership of those khasra numbers on respondent Nos. 1 and 2. The respondents did not get any right of partition with Nagina. It
may be that Khewat was the same or Rectangle was the same but it does not make respondent Nos. 1 and 2 to be joint owners or co-sharers
with Nagina who was the exclusive owner of some land out of which he sold specific part of the land to the respondents by specific khasra
numbers. If Nagina had sold half share in the land owned by him to respondents No. 1 and 2 then these vendees would have become co-sharers
and they would have acquired a right to seek partition with Nagina. But since Nagina had sold specific khasra numbers to respondent Nos. 1 and
2, he had conferred full rights of ownership of those khasra numbers. The khewat and khatauni numbers would have been changed in the next
jamabandi after the sale to respondent Nos. 1 and 2 and therefore, respondent Nos. 1 and 2 cannot claim to be the joint owners or co-sharers
with Nagina merely because the khewat or the Rectangle was the same as they had purchased specific khasra numbers and exclusive ownership
was conferred on them with regard to those khasra number by Nagina. This Court is, therefore, of the opinion that by purchasing specific khasra
numbers vide sale deed dated 7.7.1988, respondent Nos. 1 and 2 had not become co-sharers with Nagina. They had no right to seek partition
from Nagina as they had become exclusive owners with regard to those khasra numbers irrespective of the fact that the khewat or the Rectangle
number was the same between the land of Nagina and of the land purchased by respondent Nos. 1 and 2 and Nagina remained the exclusive
owner of the unsold land.
17. Since respondent Nos. 1 and 2 were not co-sharers or joint owners or co-owners with Nagina vendor of the land left with Nagina, therefore,
they did not acquire any right of pre-emption with regard to subsequent sale made by Nagina in favour of the appellants.
Accordingly, it is held that the judgments passed by the learned Lower Courts are based on the wrong interpretation of law and deserve to be set
aside. These judgments are accordingly set aside. This appeal is accepted and the suit filed by respondent Nos. 1 and 2 for preemption stands
dismissed.
