Sale of Specific Khasra Numbers Cannot Defeat Co-Sharer’s Right of Pre-Emption: Punjab & Haryana High Court

"Right of Pre-Emption Is Weak, But Not Illusory – It Cannot Be Defeated By Clever Drafting", In a significant ruling reinforcing the statutory rights of co-sharers, the Punjab and Haryana High Court upheld concurrent decrees granting possession by way of pre-emption to a co-sharer under Section 15(1)(b) of the Punjab Pre-emption Act, 1913.

Justice Amarinder Singh Grewal, while dismissing two Regular Second Appeals, held that the sale of specific khasra numbers out of a joint khewat by a co-owner amounts to sale of a share in joint land and is pre-emptible. The Court further clarified that any alleged improvement in the status of the vendee, when itself subject to a pending pre-emption challenge decided simultaneously, cannot defeat the plaintiff’s superior right.

The judgment is a comprehensive reiteration of the principles governing pre-emption, particularly the doctrine of substitution, the requirement of superior right on three crucial dates, and the limited scope of interference in second appeals under Section 41 of the Punjab Courts Act, 1918.

The dispute arose from two sale deeds executed in May and June 1989 concerning land measuring 18 kanals 4 marlas in Village Sainthali, Tehsil Narwana. The plaintiff, claiming to be a co-sharer in the joint khewat, filed two suits seeking possession by way of pre-emption in respect of 323/364 share (16 kanals 3 marlas) and 41/364 share (2 kanals 1 marla), asserting a preferential right under Section 15(1)(b) of the Punjab Pre-emption Act, 1913.

The vendee-defendant contested the suits on multiple grounds. It was argued that the land sold comprised specific khasra numbers and not an undivided share in joint holding, and thus was not pre-emptible. It was further contended that the plaintiff was not a co-sharer in the suit land and that the suit was bad for partial pre-emption. Additionally, the vendee asserted that he had improved his status by purchasing another parcel of land prior to institution of the suit and had thereby acquired co-sharership equal to the plaintiff.

Both the trial Court and the first appellate Court decreed the suits in favour of the plaintiff. Aggrieved, the vendee approached the High Court in second appeal.

The High Court examined the controversy under multiple legal heads.

Sale of Specific Khasra Numbers – Whether Pre-Emptible

The core argument of the appellant was that the sale was of specific khasra numbers and therefore not a sale of share in joint land. Rejecting this submission, the Court relied heavily on the Full Bench judgment in Bhartu v. Ram Sarup (1981 PLJ 204).

Quoting extensively from the Full Bench, the Court reiterated:

"It cannot be accepted that it is so illusory that it can be defeated simply by describing the land purchased in terms of specific khasra numbers instead of fractional share."

The High Court affirmed that when a co-owner transfers specific khasra numbers out of a joint khewat, what is conveyed is still a share in joint land. The vendee steps into the shoes of the co-sharer vendor and becomes co-sharer in the joint holding. Therefore, such a transaction remains pre-emptible under Section 15(1)(b).

The Court found that the plaintiff had established his status as co-sharer through jamabandi entries and thus possessed a preferential right.

Nature of Right of Pre-Emption – Requirement of Superior Right

The Court revisited the classical formulation of the right of pre-emption as laid down in Bishan Singh v. Khazan Singh (AIR 1958 SC 838). Citing the Supreme Court, Justice Grewal observed:

"The right of pre-emption is not a right to the thing sold but a right to the offer of a thing about to be sold."

Further quoting:

"It is a right of substitution but not of re-purchase i.e., the pre-emptor takes the entire bargain and steps into the shoes of the original vendee."

The Court reiterated that the pre-emptor must establish superior right on three crucial dates – the date of sale, the date of suit and the date of decree – and such right must subsist continuously.

Applying these principles, the Court held that the plaintiff satisfied all statutory requirements and maintained a superior right throughout.

Plea of Partial Pre-Emption Rejected

The appellant relied on Ajit Singh v. Waryam Singh to argue that the suit was bad for partial pre-emption. The Court distinguished the precedent, noting that in that case certain khasra numbers were excluded from the claim.

In the present case, the entire sale transaction was sought to be pre-empted. Therefore, the plea of partial pre-emption was found to be misconceived and rejected.

Withdrawal of Decretal Amount – No Defeat of Right

Another contention was that the plaintiff had withdrawn the decretal amount and thereby forfeited his right. The Court found this argument untenable.

It was observed that the plaintiff had duly deposited the decretal amount as directed by the trial Court. The withdrawal was permitted by the High Court during pendency of the appeal since execution was stayed and the matter was unlikely to be heard soon.

Distinguishing Bachan Singh v. Chuhar Singh, the Court held that there was no default in compliance and thus no forfeiture of right.

Improvement of Status of Vendee – Section 21-A and 28-A

The most nuanced issue concerned the vendee’s alleged improvement of status prior to filing of the suit. The appellant argued that by purchasing another parcel of land on 09.06.1989, he had become a co-sharer before the suit was instituted on 09.05.1990, thereby neutralising the plaintiff’s preferential right.

The Court analysed Section 21-A of the Punjab Pre-emption Act, which prohibits voluntary improvement in status after institution of suit. It relied on the Full Bench in Garib Singh v. Harnam Singh and the judgment in Krishan Lal v. Himta Ram.

Crucially, the Court noted that the subsequent sale deed dated 09.06.1989, forming the basis of the alleged improved status, was itself challenged by the plaintiff in a separate pre-emption suit. Both suits were decided together and the second appeals were also heard simultaneously.

Referring to observations in Krishan Lal, the Court held that where the subsequent sale is itself subject matter of a pre-emption suit and both matters are decided together, the improved status is liable to be ignored.

Thus, the vendee could not rely upon the subsequent sale to defeat the plaintiff’s right.

Second Appeal – No Need to Frame Substantial Questions of Law

On the procedural aspect, the Court referred to Pankajakshi, Randhir Kaur and Gurbachan Singh, holding that under Section 41 of the Punjab Courts Act, 1918, framing of substantial questions of law is not mandatory in second appeals before the Punjab and Haryana High Court.

The Court found no perversity or illegality in the concurrent findings of fact and declined to interfere.

Dismissing both Regular Second Appeals, the High Court upheld the decrees granting possession by way of pre-emption to the plaintiff-co-sharer. The plaintiff was directed to redeposit the withdrawn amount within two months in compliance with the trial Court’s decree.

The judgment serves as a reaffirmation that the right of pre-emption, though characterised as a weak right, cannot be defeated by technical drafting devices such as describing land by specific khasra numbers. It also clarifies that alleged improvement in status of a vendee, when itself under pre-emption challenge and adjudicated together, cannot dislodge a co-sharer’s statutory preference.

Date of Decision: 05 February 2026