Co-Sharer Has Superior Right of Pre-emption Even If Land Is Gair Mumkin Bara: Punjab & Haryana High Court

“Mere Entry as Gair Mumkin Bara Does Not Exclude Land from Pre-emption Unless Proven to Be Reclaimed Waste Land”, In a significant reaffirmation of the settled position under pre-emption law, the Punjab & Haryana High Court on January 8, 2026, dismissed a second appeal filed by the vendee challenging the concurrent decisions of the Trial Court and First Appellate Court granting a decree of pre-emption in favour of a co-sharer.

High Court held that Section 5(b) of the Punjab Pre-emption Act, 1913, which excludes reclaimed waste land from the scope of pre-emption, is not automatically attracted merely because land is recorded as Gair Mumkin Bara. The Court clarified that unless positive evidence is led to establish that the land was reclaimed by the vendee, the bar under Section 5(b) will not apply.

“Mere entry of land as Gair Mumkin Bara would not automatically attract the bar of Section 5(b),” observed Justice Mandeep Pannu, rejecting the appellant’s plea that the land was non-preemptable by virtue of its classification.

Pre-emption Decree Based on Co-sharership in Joint Land

The litigation arose from a suit for possession by way of pre-emption, filed by the original plaintiff, Chajju Ram, in respect of land measuring 3/10th share in Khasra No. 506 (total area 0 bighas 5 biswas), situated in village Kamodha, sold via sale deed dated 04.06.1990. The plaintiff claimed that he was a co-sharer at the time of sale and remained so at the time of institution of suit.

The Trial Court decreed the suit on 22.07.1992, holding the plaintiff to be a co-sharer in joint land, thereby entitled to a superior right of pre-emption. The First Appellate Court, vide judgment dated 27.07.1993, upheld this finding, rejecting the vendee’s arguments based on land classification and alleged partition.

Challenging these concurrent findings, the defendant-appellant (vendee) preferred the present Regular Second Appeal under Section 100 CPC, which was dismissed.

Gair Mumkin Bara Does Not Automatically Bar Pre-emption Under Section 5(b)

A key legal question raised by the appellant was the applicability of Section 5(b) of the Punjab Pre-emption Act, 1913, which exempts reclaimed waste land sold by a person who reclaimed it.

Rejecting this argument, the Court observed:

“Section 5(b) excludes from the scope of pre-emption the sale of agricultural land being waste land reclaimed by the vendee. In the present case, no convincing material is placed on record to prove that the suit land was reclaimed waste land.”

The Court concluded that:

“Merely because the land is recorded as Gair Mumkin Bara would not automatically attract the bar of Section 5(b). Hence, the argument of the appellant is without merit.”

Mutation of Private Partition Not Sufficient to Defeat Co-sharer’s Right

Another major contention raised by the appellant was that the land had been partitioned prior to the sale, thereby eliminating the plaintiff’s status as co-sharer.

However, the Court gave short shrift to this plea, holding:

“Reliance has been placed on Ex.D3 mutation. However, a careful reading shows it primarily relates to private partition of agricultural land. There is no clear indication that the Bara portion in Khasra No.506 stood separately partitioned.”

The Court emphasized that co-sharership must be assessed in relation to the suit land, and not generally. It was found that no partition of Khasra No.506 had been effected, and the land continued to be jointly owned at the time of sale and filing of suit.

Self-Serving Plea of Improvement Expenses Rejected

The appellant also argued that he had spent ₹4,500 on improvements, including raising boundary walls, and was therefore entitled to that amount in the event of decree of pre-emption.

However, both lower courts rejected this as self-serving and unsupported by evidence, and the High Court found no reason to interfere with that finding.

“The plea regarding expenditure of ₹4,500 on raising four walls was held to be unproved and self-serving. Findings of the trial court on this issue were affirmed.”

Scope of Interference in Regular Second Appeal Under Section 100 CPC

Upholding the concurrent findings of the two courts below, Justice Mandeep Pannu reiterated the limited scope of jurisdiction under Section 100 of the Code of Civil Procedure:

“The concurrent findings are based on proper appreciation of evidence and correct application of law. No substantial question of law arises warranting interference.”

The Court underscored that the right of pre-emption, once established on the basis of co-sharership in joint land, cannot be defeated by speculative or ambiguous claims of partition or land classification.

In conclusion, the Court dismissed the appeal and upheld the judgments and decrees of the courts below. All pending applications were also disposed of.

Key Takeaways for Legal Practitioners:

1. Classification as Gair Mumkin Bara alone does not exclude land from pre-emption under Section 5(b) of the Punjab Pre-emption Act.
2. Burden is on the vendee to prove that land was reclaimed waste land to avail the exemption under Section 5(b).
3. Private partition mutations must explicitly cover the suit land to defeat co-sharer’s right of pre-emption.
4. Second appeal cannot be used to re-appreciate evidence unless a substantial question of law is clearly made out.
5. Self-serving claims of improvement expenditures without cogent proof will not defeat pre-emption rights.

Date of Decision: 08.01.2026