Ram Kumar and another vs Raj Pal and others

J.V. Gupta, J.—This second appeal has been filed by the vendee-defendant-appellants against whom both the courts below have decreed the suit for possession by way of pre-emption.

Om Parkash vendor was the owner of the house in dispute built over an area of 50 sq. yards situate outside the limit of Municipal Committee, Rohtak. He sold it to Shrimati Sukhdei (now deceased) ancestor of defendant-appellants for Rs. 1,000/- on 17th May, 1975. Plaintiff respondent Raj Pal filed a suit for possession by preemption of the aforesaid house claiming a superior right of pre-emption being the son of the vendor The suit was filed on 28th August, 1975 During the pendency of the suit certain area including the house in dispute was included within the limits of Rohtak Municipality vide notification dated 13th April, 1976. This necessitated the amendment of the written statement which was allowed by the trial Court The vendee defendants pleaded in the amended written statement that since the house in dispute has been included within the municipal limits of Rohtak town, the plaintiff is not entitled to preempt the same because there is no such custom of pre emption prevailing in that area of the town The plaintiff did not choose to amend his plaint on the ground of subsequent events but in the replication, filed on 6th February, 1979 by him, it was stated in para 2 thereof that it is denied that there is no custom of pre-emption in the area now included in the municipal area of Rohtak Town. The plaintiff has a superior right to pre-empt the sale in dispute. The trial Court framed two additional issue amongst the others : --

(1) Whether the plaintiff has got superior right of preemption as alleged ? OPP

(2) Whether the suit land was outside the limits of M.C. Rohtak at the time of sale in question? OPP.

(3) Whether there is no custom of pre-emption in the locality as alleged in the written statement ? OPP (onus objected to).

(4) Whether the sale price was fixed in good faith and actually paid ? OPP.

(5) If issue No. 4 is not proved, what is the market value of the land in question (onus on parties)

(6) Whether the plaintiff is estopped from filing this suit as alleged in para No 1 of additional pleas taken in the written statement ? OPD

(7) Whether the instant suit has been filed at the instance of the vendor ? OPD.

(8) Whether the stamp and registration charges have been borne by the vendee defendant ? If so, how much ? OPD

(9) Whether the vendee is entitled for Rs. 2,000/- (Two thousand) on account of improvement over the property ? OPD.

(10) Relief.

ADDITIONAL ISSUES

(1) Whether the suit land was outside the municipal limits at the time of sale in question ?

(2) Whether there is no custom of pre-emption in the locality as alleged in the written statement ?

Under issue No. 2 it was found by the trial Court that the property in question was outside the limits of Municipal Committee, Rohtak, at the time of sale in question, whereas under Issue No. 3 it was held that no particular custom has been brought to the notice of the Court in this respect as no cogent evidence had been brought on the record by the defendants to this effect. Consequently, this issue was decided against the defendants and in favour of the plaintiff. As a result of these findings, the plaintiffs suit was decreed. In appeal, the learned District Judge, Rohtak affirmed the findings of the trial Court and thus maintained the decree passed in favour of the plaintiff Dissatisfied with the same, the defendant-vendee has come up in second appeal in this Court

The only question to be decided in this appeal is as to the effect of the property being included in the limits of Municipality of the Rohtak town, during the pendency of the suit. According to the learned counsel for the appellant, after the said area was included within the limits of the municipality of the Rohtak town, it ceased to be village immovable property and became urban immovable property as defined in sub section (3) of Section 3 of the Punjab Preemption Act Thus, according to the learned counsel for the appellant the property in dispute had become urban immovable property. Section 7 of the Act provides that in respect of urban immovable property in any town or sub division of a town when a custom of pre-emption is proved to have been in existence in such town or sub division at the time of the commencement of this Act and not otherwise, the right of the pre emptor shall exist. Since the plaintiff has failed to prove any such custom, his suit was liable to be dismissed because onus of issue No. 3 was wrongly placed on the defendant As a matter of fact, according to the learned counsel it was for the plaintiff to prove the custom in order to claim his superior right of pre-emption and he having failed to prove the same, his suit was liable to be dismissed. The argument further proceeded that the right of pre emption should exist at the time of sale, institution as well as at the time of passing of the decree. Since the superior right of pre-emption, if any, ceased to exist at the time of the decree, the plaintiffs suit should have been dismissed on that score alone Reliance in this behalf was placed on a Full Bench Judgment of this Court reported as Karnail Singh and others v. Jasbir Singh and another (1974) 76 P.L.R 482. On the other hand, the learned counsel for the plaintiff contended that the nature of property is to be seen only at the time of the sale and any subsequent change during the pendency of the suit will not affect the right of the pre-emptor He specifically referred to Section 5 of the Act and contended that in case the subsequent change in the nature of the property would have affected the rights of the pre emptor, it should have been so specifically provided there under Since it was not provided, the Legislature thought it fit that any such change, as in the present case is not to affect the rights of the pre-emptor. In support of his contention he referred to Sansar Chand v. Ram Lal and another (1959) 61 P.L.R. 72 and Balwant Rai etc. v. Dittu Ram etc. (1959) 61 P.L.R. 716

4 It is the common case of the parties that Rohtak is a town as contemplated under sub-section (3) of Section 3 of the Act which reads as under:--

Section 3(3) ''Urban immovable property'' shall mean immovable property within the limits of a 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 Courts.

Section 7 of the Act further provides as follows:--

Section 7. ''Subject to the privisons of section 5 a right of pre-emption shall exist in respect of urban immovable property in any town or sub-division of a town when a custom of preemption is proved to have been in existence in such town or sub-division at the time of the commencement of this Act, and not otherwise

Admittedly, earlier at the time of the sale of the house, the property in dispute was village immovable property as defined in sub section (2) of Section 3 of the Act Later on, after the notification for inclusion of the said area within the municipal limits of Rohtak town it became urban immovable property as defined in subsection (3) of Section 3 Section 7 of the Act reproduced above specifically provides that any right of pre-emption shall exist in respect of urban immovable property in any town or sub-division of a town when a custom of pre-emption is proved to have been in existence in such town or sub division at the time of the commencement of this Act and not otherwise Thus, it is quite evident that the plaintiff could only succeed in his suit if he would have proved any such custom as contemplated under the provisions of Section 7 of the Act. Having failed to prove any such custom his suit was liable to be dismissed. As a matter of fact, the plaintiff never amended his plaint after the said notification and was satisfied by filing his replication only in which no such Custom was ever pleaded. It could not be disputed that it is for the plaintiff to prove any custom in order to succeed in his suit Thus, the whole approach of the courts below is wrong and illegal and the findings arrived at are liable to be set aside The judgments relied upon by the learned counsel for the respondent are not at all applicable to the facts of the present case. The judgment reported as Salamat Rai v. Kanshi Ram and others AIR 1918 Lah. 334 (1) relied upon by the lower appellate Court has no bearing on the facts of the case in hand. Here in the present case, there is no question of any change with nature of any property. The nature of the property is the same throughout. Admittedly, it was a residential house which was sold and it remained the same even after being included in the municipal area of Rohtak town. The change after the notification is that the suit property ceased to be village immovable property any more and had become urban immovable property as provided under sub-section (3) of Section 3. Change of nature of property is different as contemplated in section 5(6) of the Act which deals with the sale of agricultural land. As regards Salamat Rai v. Kanshi Ram and others'' case (supra) the property sold was a site situated within Hoshiarpur City and the Railway Station which was subsequently included in the municipal town of Hoshiarpur and was also assessed to land revenue and under these circumstances it was held that the inclusion of land within the municipal limits of the city does not make it a part of that city for preemption purposes.

For the reasons recorded above this appeal succeeds judgment and decree of the courts below are set aside and the plaintiffs suit is dismissed with costs.