Case Note & Summary
The present appeals arise from a common judgment of the Punjab and Haryana High Court dated 17.08.2007, which allowed two second appeals (RSA No.1470/1983 and RSA No.1557/1983) filed by the original plaintiff Jagtar Singh (predecessor of the respondent) and decreed Civil Suits No.420/1981 and 421/1981. The suits were filed by Jagtar Singh seeking possession of suit lands on the basis of a claimed right of pre-emption under the Punjab Pre-emption Act, 1913. The suit lands were originally owned by Jit Singh and his wife Piar Kaur. Jit Singh sold 12 bighas (240/819th share of 40 bighas 19 biswas) to defendant Jhabbar Singh and others vide registered sale deed dated 07.04.1980 for Rs.46,500/-. Piar Kaur sold 10 bighas 18 biswas (218/819th share) to the same defendants vide registered sale deed dated 24.04.1980 for Rs.42,500/-. On 06.04.1981, Jagtar Singh filed two suits claiming a superior right of pre-emption as a co-sharer. The trial court dismissed the suits, but the first appellate court decreed them. The High Court in second appeal upheld the decree. The Supreme Court, hearing appeals by the legal heirs of the original defendants, allowed the appeals, holding that the right of pre-emption is a weak right and must be strictly proved. The plaintiff failed to prove any custom conferring a right of pre-emption against a co-sharer's sale. The High Court erred in decreeing the suit without proper proof of custom. The Supreme Court set aside the High Court's judgment and restored the trial court's dismissal of the suits.
Headnote
A) Pre-emption Law - Right of Pre-emption - Weak Right - Strict Proof Required - The right of pre-emption is a weak right and must be strictly proved by the person claiming it. The plaintiff must establish a superior right to pre-empt the sale, and the burden lies heavily on him to prove the custom conferring such right. (Paras 1-10) B) Pre-emption Law - Custom - Pleading and Proof - Custom must be specifically pleaded and proved by the party relying on it. In the absence of clear evidence of custom, the right of pre-emption cannot be enforced against a co-sharer's sale. (Paras 5-8) C) Pre-emption Law - Punjab Pre-emption Act, 1913 - Sections 15, 16 - Right of Pre-emption - Co-sharer's Sale - The Act does not confer a right of pre-emption on a co-sharer against another co-sharer's sale unless a custom to that effect is proved. The plaintiff failed to prove such custom. (Paras 9-12)
Issue of Consideration
Whether the plaintiff had a superior right of pre-emption over the suit lands sold to the defendants under the Punjab Pre-emption Act, 1913, and whether the High Court erred in decreeing the suit without proper proof of custom.
Final Decision
Supreme Court allowed the appeals, set aside the High Court's judgment, and restored the trial court's dismissal of the suits.
Law Points
- Right of pre-emption is a weak right
- must be strictly proved
- burden on plaintiff to establish superior right
- custom must be specifically pleaded and proved
- pre-emption not available against co-sharer's sale unless custom confers such right.
