1995 Haryana Amendment Cannot Defeat Co-Sharer’s Pre-emption Decree Already Crystallised; Limitation for Undivided Share Runs From Registration: Punjab & Haryana HC

Case Name: Om Parkash v. Raj Singh

Date of Judgment: 15 July 2026

Citation: RSA-1329-1995

Bench: Justice Sandeep Moudgil

Held: The Punjab and Haryana High Court held that the Punjab Pre-emption (Haryana Amendment) Act, 1995 could not retrospectively extinguish a co-sharer’s right of pre-emption that had already crystallised through a decree of the trial Court and had been affirmed by the first appellate Court before the amendment came into force. A subsequent legislative amendment affecting substantive rights ordinarily operates prospectively unless the legislature expressly or by necessary implication gives it retrospective effect.

The Court further held that a co-sharer continues to be an owner in every part of the joint holding until a lawful partition takes place. Mere separate possession or cultivation of a specific portion does not amount to partition or severance of title. A private partition must be proved and recognised in accordance with Section 123 of the Punjab Land Revenue Act, 1887. In the absence of a legally recognised partition, the vendors could transfer only their undivided share, and the plaintiffs retained their preferential right of pre-emption as co-sharers.

On limitation, the Court held that where the sale concerns an undivided share in joint property, the transaction does not admit of delivery of exclusive physical possession of a specific portion. Consequently, limitation under Article 97 of the Limitation Act, 1963 begins from the date of registration of the sale deed and not merely from its execution or an asserted delivery of possession.

Summary: The litigation arose from the sale of agricultural land measuring 23 bighas by the original owners in favour of the vendee-defendants through a registered sale deed executed on 16 May 1988. The plaintiffs instituted a suit for possession by way of pre-emption, claiming that they had previously acquired a share in the same joint khewat through a registered sale deed dated 5 July 1985 and a mutation sanctioned on 18 February 1986. On this basis, they asserted a superior right to substitute themselves for the vendees.

The vendee-defendants opposed the suit by contending that the joint holding had already been partitioned through a family arrangement and subsequent revenue proceedings. They argued that the vendors were in exclusive possession of the land sold and that the plaintiffs had ceased to be co-sharers. They also raised limitation and contended that the right of a co-sharer to claim pre-emption had been abolished by the Punjab Pre-emption (Haryana Amendment) Act, 1995 during the pendency of the second appeal.

The trial Court decreed the suit on 5 August 1991 after finding that no valid partition had been proved and that the plaintiffs continued to be co-sharers. It accepted the sale consideration recorded in the sale deed and directed pre-emption on payment of the consideration together with stamp and registration expenses. The first appellate Court affirmed the decree on 7 March 1995.

Examining the claim of partition, the High Court found that the plaintiffs had acquired their share and had been entered in the revenue record before the partition proceedings were initiated. They were not made parties to those proceedings and had not been served notice regarding the preparation of the partition documents. The alleged private family partition was also unsupported by reliable documentary evidence and had never been affirmed by the competent Revenue Officer in accordance with Section 123 of the Punjab Land Revenue Act.

The Court reiterated that separate possession or cultivation by individual co-sharers is ordinarily an arrangement for convenience and does not establish partition. Until a legally recognised partition takes place, each co-sharer remains interested in every part of the joint holding. Therefore, the vendors could not transfer exclusive ownership or possession of a specifically demarcated portion merely by mentioning particular khasra numbers in the sale deed.

The High Court also noted that the Financial Commissioner had subsequently set aside the earlier partition proceedings and directed a fresh partition. This further supported the conclusion that no final and binding partition had taken place and that the plaintiffs continued to possess the status of co-sharers.

With respect to the 1995 amendment, the Court applied the principle that a pre-emptor must possess the qualifying right on the date of sale, the date of institution of the suit and the date of the trial Court decree. The plaintiffs fulfilled this requirement because the sale took place in 1988, the suit was filed in 1989 and the trial Court granted the decree in 1991, all before the legislative amendment.

The Court observed that the plaintiffs’ right had not only accrued but had received judicial recognition before the amendment. The mere pendency of a Regular Second Appeal could not permit subsequent legislation to take away that crystallised substantive right in the absence of clear retrospective language. The rights arising from a sale completed before the amendment were required to be governed by the law prevailing when the sale was completed.

On limitation, the Court explained that Article 97 provides different starting points depending upon whether the subject matter admits of physical possession. Since the sale concerned only an undivided share in a joint holding, the vendors could not legally deliver exclusive physical possession of a specific part without partition. The applicable starting point was therefore the date of registration of the sale deed. Although the deed was executed on 16 May 1988, it was registered on 25 May 1988, and the suit filed on 22 May 1989 was within the prescribed one-year period.

The Court ultimately found no perversity or error of law in the concurrent findings of the two Courts below and declined to interfere under the limited jurisdiction conferred by Section 100 of the Code of Civil Procedure, 1908.

Decision: The Regular Second Appeal was dismissed. The High Court upheld the trial Court decree dated 5 August 1991 and the first appellate Court decree dated 7 March 1995 granting possession by way of pre-emption to the plaintiffs.

The Court affirmed that the plaintiffs continued to be co-sharers because no lawful partition had been proved, that their right of pre-emption had crystallised before the 1995 Haryana amendment, and that the suit was within limitation because the one-year period under Article 97 ran from the date of registration of the sale deed involving the undivided share.