JAGMOHAN AND ANOTHERversusBADRI NATH AND OTHERS

                  [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


* Author
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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 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


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
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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
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                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 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 owner-
                 First, 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.
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       (b)    Where the sale is of a share out of joint land or
              property made by all the co-sharers jointly-
              First 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 jointly-
              First, 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 vest-
                 First, 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 land-
                 owner;
           (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
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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 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 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.
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            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.