suit for possession by pre-emption - whether the exemption of pre-emption as granted
vide notification dated 08.10.1985 would be available to the
property in dispute.- 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.
2024 INSC 86 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2024
(Arising out of SLP(C)No.18612 of 2015)
JAGMOHAN AND ANOTHER … Appellant(s)
VERSUS
BADRI NATH AND OTHERS … Respondent(s)
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’).
1 Civil Suit No. 309
1
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 sale-deed dated 25.01.1983. The
respondents filed the suit exercising their right of pre-emption
of the sale claiming that in terms of the 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
.
2 Additional Senior Sub Judge, Jagadhri
3 Judgment and decree dated 27.05.1989
4 High Cour of Punjab and Haryana at Chandigarh
5 The Punjab Pre-emption Act, 1913
6 Sale-deed dated 25.01.1983
2
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
7 (2001) 8 SCC 24
3
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 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
8 R.S.A. No. 2109 of 1998
9 The Limitation Act, 1963
4
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,
10 Additional District Judge, Yamuna Nagar at Jagadhri
5
other than agricultural land. 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
11 Punjab Alienation of Land Act, 1900
12 The General Clauses Act, 1897
6
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:
(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)
7
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 pre-emption- (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;
8
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.
(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;
9
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;
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 vest-
First, in the son or daughter of such husband of
the female;
10
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 land-owner;
11
(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 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
12
Court is as to whether the exemption of pre-emption 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
13
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.
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.
14
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.
…...………….……………..J.
(C.T.RAVIKUMAR)
…...………….……………..J.
(RAJESH BINDAL)
New Delhi
February 06, 2024.
15
