Holding

The defence of improvement of status under Section 21‑A is not available where the acquisition of the share is amenable to challenge; Section 28‑A applies and the appellate decrees stand.

Summary

The case concerned two pre‑emption suits filed under the Punjab Pre‑emption Act, 1913 after the appellant purchased a one‑fourth share of agricultural land (first sale) and later a one‑eighth share (second sale) from co‑owners. The plaintiff sought to enforce his pre‑emptive right over both sales, while the appellant defended that he had improved his status to that of a co‑owner before the first suit, invoking Section 21‑A, and also relied on Section 28‑A to stay the second suit. The trial court dismissed the suits, but the appellate courts reversed and decreed in favour of the plaintiff, a decision upheld by the High Court. The Supreme Court examined whether the defence of improvement of status under Section 21‑A is available when the acquisition of the additional share is itself subject to a pending pre‑emption suit. It held that Section 21‑A applies only where the status is undisputed and not amenable to challenge; here the second sale was contested, so the defence failed and Section 28‑A governed. Consequently, the appellate decrees were affirmed and the appeals were dismissed.

Issues considered

Whether the defence of improvement of status under Section 21‑A of the Punjab Pre‑emption Act, 1913 is available when the appellant’s acquisition of an additional share is itself subject to a pending pre‑emption suit.
Whether Section 28‑A overrides Section 21‑A in such circumstances.

Legislation cited

Punjab Pre-emption Act, 1913s. 21-A, s. 28-A

Subjects

pre-emptionimprovement of statusSection 21-ASection 28-Aco-ownershipagricultural landcivil appeal

Judgment

A PREMA (DEAD) THR. LRS.
v.
SURAT SINGH AND ORS. ETC. ETC.

FEBRUARY 4, 2003

B [SYED SHAH MOHAMMED QUADRI AND ARUN KUMAR, JJ.)

Punjab Pre-emption Act, 1913:

Ss.2 /-A and 28-A-Pre-emption suit--Defence ofimprovement in status-
C Stranger purchasing I14th share ofone of the co-owners in agricultural land-
Same vendee subsequently purchasing /18th share of another co-owner- Suit
for pre-emption flied by another co-owner in respect offirst sale-Second suit
for pre-emption flied by the co-owner in respect of subsequent sale-Defence
of the vendee that before filing of the first suit he had improved his status as
a co-owner by purchasing the share of the co-owner under second sale-Suits
D dismissf!d by trial court-First appellate court allowed the appeals of co-
owner and decreed the suits-Appellate decree affirmed by High Court-
Held, acquisition of status for the purpose of s.21-A would mean a status
which is undisputable and/or not amenable to challenge and not the one in
controversy or subject matter of challenge before a competent court~.28-A
E is attracted to a case where plaintiff seeks relief of pre-emption as also to a
case where improveme.nt ofstatus is pleaded in defence-The/act that by virtue
of the second sale, the vendee has acquired one-eighth share in the joint
property would be of no consequence as the plea of improvement of status
would not be available to him as acquisition of right under the second sale
is amenable to challenge and is, in/act, the subject matter ofthe second suit-
F No illegality in judgment of High Court.
Garib Singh Kishan Singh v. Harnam Singh Kishan, AIR (1972) P. &
ff. 99, referred to.

CIVIL AP PELLA TE JURISDICTION : Civil Appeal Nos. I 008-
G 1009 of 1995.
From the Judgment and Order dated 18.8.1993 of the High Court of 'I
Punjab and Haryana in Regular Second Appeal Nos. 2178 and 2178-A 9f
1989.

H 814

·'
!'REMA v. SURAT SINGH 815
Anip Sachthey, Abhay Kumar and E. Venu Kumar, for the Appellants. A
PC. Jain, H.M. Singh, Ranbir Yadav, K.P. Singh, C.M. Patel and B.D.
Sharma, for the Respondents.

The following Order of the Court was delivered
B
These two appeals arise from a common judgment of the High Court
of Punjab and Haryana at Chandigarh in Regular Second Appeal Nos. 2178
of 1989 and 2178-A of 1989 passed on August 18, 1993.

The controversy in these appeals relates to the scope of defence of
improvement made in the status in a suit seeking enforcement of the right of C
pre-emption under the Punjab Pre-emption Act, 1913 (hereinafter referred to
as 'the Act'].

The appellant was the defendant-vendee in the suit for pre-emption
filed by the respondent-plaintiff. On 4th September, 1984, the appellant
purchased one-fourth share in the agricultural lands from one jangli who was D
a co-owner along with his brothers, Jai Narain and the respondent-plaintiff
[hereinafter referred to as 'the first sale'). On October 15, 1984, the appellant
purchased one-eighth share of Jai Narain the said lands [hereinafter referred
to as 'the second sale'). While so, the respondent filed Suit No. 129 of 1986
claiming right of pre-emption in respect of the land covered by the first sale E
in the Court of Sub-Judge, llnd Class, Gurgaon, on Sept.ember 3, 1985
[hereinafter referred to as 'the first suit'). The respondent brought another
suit for pre-emption in respect of the land covered by the second sale on 15th
October. 1985, being Suit No. 124 of 1986 in the Court of the Sub-Judge,
llnd Class, Gurgaon [hereinafter referred to as 'the second suit'[. The defence
of the appellant was that even before the first suit was filed, he had become F
the co-owner and had, thus, improved his status equal to that of the respondent
and as such, the suit could not be decreed against him. That submission was
based on Section 21-A of the Act. The respondent filed an application under
Section 28-A of the Act seeking stay of the second suit. The application was
dismissed by the trial court on 3 lst January, 1987. Against that order, he G
filed a revision petition before the High Court of Punjab and Haryana, which
was also dismissed, on 3rd October, 1988, with the observation that both the
)[
suits be tried together.

Having considered the respective pleas of both the parties, the learned
Trial Judge dismissed the suits on 10th January, 1987. On appeal by the H
~ .
816 SUPREME COURT REPOR'TS (2003) I S.C.R.

A respondent against the judgement and decree of the Trial Judge, the First
Appellate Court allowed the appeals and decreed the suits on 14th August,
1989. The High Court upheld the judgements and decrees of the First Appellate
Court in the second appeals by its judgements and decrees which are under
challenge in these .a,ppeats.

B Mr. Anip Sachthey, learned counsel appearing for the appellants,
contends that inasmuch as the appellant had purchased under the second sale, ~
a share in the joint property and, thus, became a co-owner and improved his
status even before tiling of the first suit, the plaintiff cannot claim a superior
right in respect of the land covered by the first sale.
c Mr. P.C. Jain, leatned senior counsel appearing for the respondent, on
the other hand, argues th·at Section 21-A of the Act does not apply to a case
like the present one~ It ls intended to apply to a situation where a co-owner
along with a stranger acquires a share in the joint property which defeats his
defence to a suit of pre-emption due to the presence of a stranger, so in such
D a case if the stranger transfers his right in favour of a co-owner, that would
amount to improving the status and in such a situation, Section 21-A would
apply. Section 28-A of the Act, submits the learned counsel, is applicable to
the facts of the instant case and the appellant cannot take advantage of the
second sale. The trial court, it is contended, erroneously held that Sectior 21-
A of the Act over-rides Section 28-A of the Act and that both these sections
E operate in different fields and as Section 21-A of the Act itself is not applicable,
the defence has to fail. In support of his contentions, he invited our attention
to a judgement of the Full Bench of the High Court of Punjab and Haryana
in Garib Singh Kishan Singh v. Harnam Singh Kishan Singh and Ors., reported
in AIR (1972) Punjab and Haryana 99.
F It would be appropriate to note that in the Act, Section 28-A was
inserted by the Punjab Pre-emption (Amendment) Act, 1928 and Section 21-
A was inserted by the Punjab Pre-emption (Amendment) Act, 1944. Section
21-A of the Act is in the following terms:

"Section 21-Any Improvement, otherwise than through inheritance
G
or succession, made in the status of a vendee defendant after the
institution of a suit for pre-emption shall not affect the right of the
pre-emptor-plaintiff in such suit."

A plain reading of the provision, extracted above, would shbw that it
H nullifies the effect to acquisition of any right by the defendant in a pre-
PREMA v. SURAT SINGH 817
emption suit for the purpose of improvement of his status pendente lite, A
except by way of inheritance or succession. On the clear language of the
provision, it is difficult to accede to the contention that Section 21-A of the
Act would be attracted only in a case where one of the co-owners as a
defendant in a pre-emption suit loses ·his status by virtue of being a co-
vendee with a stranger and subsequently improves his status by acquiring
pendente lite the right of the stranger vendee. B
In Garib Singh Kishan Singh (supra), a Full Bench of the High Court
of Punjab and Haryana considered the question,

"Whether a vendee who has joined with a stranger in purchasing
agricultural land or immovable property can by acquiring the interest C
of the stranger co-vendee by gift or sale successfully resist a suit for
pre-emption in view of the provisions of Section 21-A of the Punjab
pre-emption Act, 1913?"

The question as framed reflects broadly the facts of that case. There,
four sons of a person jointly possessed agricultural lands. On the death of D
Kartar Singh, one of the sons, his son, Harchand Singh, sold his one-fourth
share to one of his uncle, Gharib Singh, and his wife, Gurnam Kaur, under
a registered sale deed. Harnam Singh, the other broth•r of Kartar Singh
brought the suit for pre-emption. During the pendency of the suit, Gurnam
Kaur made a gift of her share in the land which was purchased jointly with E
her husband, in favour of her husband. The Full Bench of the High Court
considered the position of law as it obtained before the insertion of Section
21-A of the Act in paragraph 18 of the judgement.

Having referred to the Statement of Objects and Reasons of the amending
Act by which Section 21-A was inserted, it was held,. F
"a vendee who associates with himself in the sale a stranger cannot
resist the claim for pre-emption on the basis of his own qualifications
or status. It is settled law that where the sale is in favour of several
persons, it is the status of the lowest of the vendees that has to be
taken into account in determining whether the pre-emptor has a G
preferential right. Had not Gharib Singh obtained the share of his
wife ·by gift in his favour, surely he could not have resisted the pre-
emptor's claim. Now by purchasing his wife's share he claims to
have got rid of that disability and sets up his own status as co-sharer .
and relationship with the vendor as defence to defeat the pre-emptor's H
SUPREME COURT REPORTS [2003] I S.C.R.

A claim. In my opinion, there can be no doubt that by getting rid of the
stranger he has attempted to improve his position."

Jn our view, this position cannot be doubted.

The conclusion arrived at the answer recorded to the afore-mentioned
B question have to be under stood in the facts of that case and cannot be
generalised to limit the scope of Section 21-A of the Act. Be that as it may,
from what we have. stated above, it is clear that for the purpose of the first
suit, the defence of the improvement of status based on the second sale
cannot be accepted because that acquisition of right itself is amenable to
challenge and was indeed challenged. Acquisition of status for the purpose
C of Section 21-A of the.Act would mean, a status which is undisputable and/
or not amenable to challenge and not the one in controversy or subject matter
of challenge before a competent court.

Section 28-A of the Act, which was inserted in the Act, anterior to
Section 21-A reads thus:
D
"Section 28-A:-If, in any suit for pre-emption, any person bases a
claim or plea on a right of pre-emption derived from the ~wnership
of agricultural land or other immovable property, and the title to such
land or property is liable to be defeated by the enforcement of a right
of pre-emption with respect to it, the court shall not decide the claim
E
or plea until the period of limitation for the enforcement of such right
of pre-emption has expired and the suits for pre-emption (if any)
instituted with respect to the land o.r property during the period have
been finally decided.

(2) lfthe ownership of agricultural land or other immovabl~ property
F
is lost by the enforcement of a right of pre-emption, the court shall
disallow the claim or plea based upon the right of pre-emption derived
therefrom."

A careful reading of this provision shows that if in a suit for pre-
G emption, claim is based or a plea taken is dependant on a right of pre-
emption derived from the co-ownership of the agricultural land or other
immovable property and title co such land or property is liable to be defeated
by enforcement of a right of pre-emption with respect to it, the court is
directed not to decide the claim or plea until the period of limitation for the
enforcement of such right of pre-emption has expired or the _suit for pre-
H emption, if any, instituted with respect to the land or property during the
PREMA v. SURAT SINGH 819

period has been finally decided. Section 28-A of the Act is attracted to a case A
where a plaintiff seeks relief of pre-emption as also to a case where the
improvement of status is pleaded in defence. If that be so, the fact that by
virtue of the second sale, the appellant has acquired one-eighth share in the
joint property would be of no consequence as the plea of improvement of
status would not be available to him as the second sale itself is the subject-
matter of the second suit. B
We way record that Mr. Jain learned senior counsel has submitted that
the decree under challenge had beer executed and the respondent had taken
· possession as long back as in 1993 itself.

For the above reasons, we are unable to find any illegality in the C
judgement under challenge. The civil appeals are, therefore, dismissed but, in
the circumstances of the case, we make no order as to costs.

R.P. Appeals dismissed.