DECIDING AUTHORITY: Supreme Court
DATE OF JUDGMENT: 16/02/2000
BENCH: S. SAGHIR AHMED & Y.K. SABHARWAL
FACTS: Respondents 1 to 4 are the legal heirs of the original plaintiff Suram Singh. The father of Suram Singh named Hand Lal was joint owner of the land in question along with one Bassia. In the year 1940, Bassia sold the land to Harnam Singh, Munshi Ram and Tilak Chand. In July 1941, Suram Singh brought a suit for pre-emption of this sale against Harnam Singh, Munshi and Tilak Chand, The said suit was decreed on 31st January, 1942, and directed payment of pre-emption amount On or before 1st April, 1942. The said amount was deposited by Suram Singh in Court as per the terms of the decree. The suit out of which the present appeal has arisen was filed by Suram Singh against successors in the interest of Harnam Singh, Munshi and Tilak Chand inter alia seeking a decree of declaration that he is owner in possession of the land in question and also seeking relief of permanent injunction to restrain defendants from causing an interference in the enjoyment of the suit land by him. In the suit, the deposit of the pre-emption amount by the plaintiff Suram Singh before first April, 1942, was duly proved. The trial court held that the plaintiff is the owner of the suit land though the possession is with the defendants without any title. The defendants had sought partition proceedings as their names continued in the revenue record. The trial court held that the partition proceedings are void since the defendants have not title to the land and the said proceedings were not binding upon the plaintiff. In the first appeal, the District Judge reversed the judgment and decree of the trial court. The District Judge allowing the appeal and dismissing the suit held that the defendants had continued in hostile possession since the time of the passing of the decree in pre-emption suit in favour of the plaintiff and thus they had become owner by adverse possession prior to the institution of the suit.
In the second appeal, the High Court, noticing that admittedly no plea with regard to adverse possession was raised by the defendants and the only plea taken by them was that they had come in possession as successors of the vendees, has reversed the aforesaid decision of the first appellate court. The High Court has held that the plaintiff is owner in possession of the land and the defendants have been restrained from interfering with the ownership and possession of the plaintiff. The defen-dants have filed this appeal challenging the decision of the High Court.
JUDGEMENT: The only contention urged by the learned counsel of Appellants is that the possession having not been delivered to the plaintiff in terms of the pre-emption decree, the plaintiff cannot rely upon the said decree,particularly when the execution petition filed by the plaintiff was dismissed. Reliance has been placed on Rule 14(1) of Order 20, Code of Civil Procedure. A plain reading of the aforesaid provision shows that the title to the decree-holder accrues form the date of the payment required to be made under a pre-emption decree. In view of the deposit by the original plaintiff of the pre-emption amount in terms of the pre-emption decree, the dismissal of the execution petition was inconsequential since the plaintiff was in joint possession of the land, which was part of joint khata. The land sold by Bassia, which was subject matter of the pre-emption suit, was not any particular part of the land of joint khata but was his undivided share therein. The share of Bassia had never been separated by way of partition before sale by him. The plaintiff was already in possession of the land along with other co-shares. There is neither any plea nor any finding of partition having been effected by Bassia. On the facts and circumstances of the case, no actual possession was required to be obtained or delivered. When there was threat to the title of the plaintiff, the suit was filed by him. We find no infirmity b the decision of the High Court.
HELD: Appeal Dismissed.
By Tejasv Anand, IVth Year, Amity Law School,Delhi.
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