* Author
[2024] 2 S.C.R. 123 : 2024 INSC 86
Jagmohan and Another
v.
Badri Nath And Others
(Civil Appeal No. 1753 of 2024)
06 February 2024
[C.T. Ravikumar and Rajesh Bindal,* JJ.]
Issue for Consideration
Exemption of pre-emption as granted vide notification dated
08.10.1985, if available to the urban immovable property on which
right of pre-emption was sought to be exercised by the tenants.
Headnotes
Punjab Pre-emption Act, 1913 – ss. 16, 8(2), 3(1), (3) – Person
in whom right of pre-emption vests in an urban immovable
property – Tenants were in the property from the year 1949
onwards where the rolling mill had been set up – Property
was an urban immovable property, located in a municipal
area of Jagadhri – Owners of the property sold the property
to the vendee by way of sale deed – Suit filed by the tenant
exercising right of pre-emption of sale, claiming preferential
right to purchase the property – Vendee’s case that pre-emption
did not apply – Suit allowed by the courts below – Exemption
of pre-emption as granted vide notification dated 08.10.1985,
if available to the said property:
Held: If the said 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 – s. 8(2)
uses two terms independently, clearly suggests that the land and
the immovable property have different meanings – s. 15 also
provides right of pre-emption in respect of agricultural land and
village immovable property – Thus, the provisions of the 1913 Act,
if read with the Scheme of the Act, makes it clear that the land
and the immovable property are two different terms – Immovable
property is more than the land on which certain construction has
been made – As the notification limits its application for taking
away the right of pre-emption only with reference to sale of land
124 [2024] 2 S.C.R.
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falling in the areas of any municipality, the same will not come to
the rescue of the vendee – 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 tenants – Also, the issue
regarding limitation for filing of the suit is misconceived – Thus,
orders of the courts below upheld. [Paras 14-19]
Punjab Pre-emption Act, 1913 – s. 3(3) and 2(3) – Term ‘land’
and ‘immovable property’ – Distinction between:
Held: Provisions of the 1913 Act, if read with the Scheme of the
Act, it is clear that the land and the immovable property are two
different terms – s. 8(2) uses two terms independently, clearly
suggests that the land and the immovable property have different
meanings – Immovable property is more than the land on which
certain construction has been made – Definition of immovable
property, in s. 3(26) of the 1897 Act, which includes land, means
something more than the land. [Paras 15, 16]
Punjab Pre-emption Act, 1913 – s. 3(1), (3) – Term ‘agricultural
land’ and ‘urban immovable property’ – Definition of. [Para 12]
Punjab Alienation of Land Act, 1900 – s. 2(3) – Term ‘land’ –
Definition of. [Para 12]
General Clauses Act, 1897 – s. 3(26) – Term ‘immovable
property’ – Definition of. [Para 16]
Case Law Cited
Shyam Sunder and others v. Ram Kumar and another,
[2001] 1 Suppl. SCR 115 : (2001) 8 SCC 24; Sandeep
Bansal v. M. L. Hans and others R.S.A. No. 2109 of
1998 – referred to.
List of Acts
Punjab Pre-emption Act, 1913; Punjab Alienation of Land Act, 1900;
General Clauses Act, 1897; Limitation Act, 1963.
List of Keywords
Pre-emption; Exemption of pre-emption; Right of pre-emption;
Custom of pre-emption; Notification dated 08.10.1985; Tenants;
Preferential right to purchase the property; Urban immovable
property; Land; Immovable property; Agricultural land; Village
immovable property; Rolling mill; Limitation.
[2024] 2 S.C.R. 125
Jagmohan and Another v. Badri Nath and Others
Case Arising From
CIVIL APPELLATE JURISDICTION : Civil Appeal No.1753 of 2024
From the Judgment and Order dated 25.02.2015 of the High Court of
Punjab & Haryana at Chandigarh in RSA No.2023 of 1992
Appearances for Parties
Shish Pal Laler, Hitesh Kumar, Atul, Vedant Pradhan, Mrs. Kadambini,
Ravi Panwar, Advs. for the Appellants.
Neeraj Kumar Jain, Sr. Adv., Sanjay Singh, Siddharth Jain, Umang
Shankar, Advs. for the Respondents.
Judgment / Order of the Supreme Court
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 suit1
on 25.01.1984
for possession by pre-emption of the plot measuring 719 square
yards, situated at Light Railway Bazar, Jagadhri (hereinafter referred
to as ‘the property in dispute’). The Trial Court2
decreed the suit.
The judgment and decree3
of the Trial Court was upheld upto
the High Court4
.
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 saledeed dated 25.01.1983. The respondents filed the suit exercising
their right of pre-emption of the sale claiming that in terms of the
1 Civil Suit No. 309
2 Additional Senior Sub Judge, Jagadhri
3 Judgment and decree dated 27.05.1989
4 High Cour of Punjab and Haryana at Chandigarh
126 [2024] 2 S.C.R.
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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
.
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 preemption 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 another7
,
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 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
5 The Punjab Pre-emption Act, 1913
6 Sale-deed dated 25.01.1983
7 [2001] 1 Suppl. SCR 115 : (2001) 8 SCC 24
[2024] 2 S.C.R. 127
Jagmohan and Another v. Badri Nath and Others
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 others8
,
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 Act9
provides for
a period of one year for filing of suit for pre-emption. If the same
is read along with 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, other than agricultural land.
8 R.S.A. No. 2109 of 1998
9 The Limitation Act, 1963
10 Additional District Judge, Yamuna Nagar at Jagadhri
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Section 3(1) thereof defines any agricultural land to mean land
as defined in 1900 Act11. 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 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:
11 Punjab Alienation of Land Act, 1900
12 The General Clauses Act, 1897
[2024] 2 S.C.R. 129
Jagmohan and Another v. Badri Nath and Others
(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) If so declared by
the State Government by notification in the Official
Gazette or (b) if so found by the Courts:
xx xx xx
8. State Government may exclude areas from preemption- (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.
xx xx xx
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 ownerFirst, in the son or daughter or son’s son or daughter’s
son of the vendor;
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.
130 [2024] 2 S.C.R.
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(b) Where the sale is of a share out of joint land or
property made by all the co-sharers jointlyFirst 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 jointlyFirst, 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;
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 subsection (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;
[2024] 2 S.C.R. 131
Jagmohan and Another v. Badri Nath and Others
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 vestFirst, in the son or daughter of such husband of the
female;
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, -
xx xx xx
(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 landowner to a superior landowner;
(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
132 [2024] 2 S.C.R.
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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 Court is as to whether the exemption of preemption 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 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.
[2024] 2 S.C.R. 133
Jagmohan and Another v. Badri Nath and Others
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.
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.
Headnotes prepared by: Nidhi Jain Result of the case: Appeal dismissed.
