right of pre-emption = in order to claim the right of pre-emption, the plaintiff should have such right as, inter alia, the co-sharer or heir of the said property. In the matter at hand, though the respondent was declared as a co-sharer by virtue of the decree dated 28.03.1984, the said decree was set aside by the First Appellate Court, the High Court as well as this Court. Thus, the respondent cannot be considered as a co-sharer, and since it is so, he cannot claim the right of pre-emption either.

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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9064 OF 2019
(Arising out of SLP (C) No.11268 of 2018)
SURAJ BHAN & ORS. APPELLANT(S)
VERSUS
GORAKH RAM RESPONDENT(S)
O R D E R
Heard learned counsel for the parties.
Leave granted.
The judgment dated 21.02.2018 in R.S.A No. 444 of 1995
passed by the High Court of Punjab and Haryana at Chandigarh
has been called in question in this appeal.
The brief facts in this appeal are as under:
The respondent herein filed a suit claiming pre-emption
on the ground that he was a co-owner of the suit property and
had been in possession thereof by virtue of decree dated
28.03.1984. The said decree had been passed by the Trial Court
in a prior suit wherein the respondent was declared as a co-
sharer in the suit property. Based on this, the respondent
filed the suit for pre-emption, which came to be decreed on
13.08.1993. This decree was subsequently confirmed by the
First Appellate Court on 10.12.1994.
In the meanwhile, the appellant herein filed an appeal
against the decree dated 28.03.1984. This appeal was allowed
and consequently, the declaration that the respondent is a co-
sharer in the suit property was set aside vide order dated

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30.04.2005. This order was confirmed by the High Court on
11.05.2010 and by this Court vide order dated 25.08.2005 in
SLP (C) No.23144/2014. Thus, the decree passed in favour of
the respondent, declaring him as a co-sharer, was set aside
and this has been confirmed upto this Court. Consequently, the
respondent cannot be said to be a co-sharer in the suit
property.
Despite this, in the second appeal filed by the appellant
herein against the decree dated 13.08.1993 passed in the suit
for pre-emption, the High Court has, vide the impugned
judgment, held that the respondent is entitled to exercise his
right of pre-emption under the provisions of the Punjab Pre-
emption Act, 1913. In doing so, the High Court relied upon the
judgment of this Court in Shyam Sunder & Ors. v. Ram Kumar &
Anr., (2001) 8 SCC 24.
In the aforementioned judgment by a Constitution Bench of
this Court (supra), the principles of pre-emption have been
succinctly stated as follows:
�In changed circumstances, the right of pre-emption
may be called outmoded, but so long it is
statutorily recognized, it has to be given the same
treatment as any other law deserves. The right of
pre-emption of a co-sharer is an incident of
property attached to the land itself. It is some
sort of encumbrance carrying with the land which can
be enforced by or against the co-owner of the land.
The main object behind the right of pre-emption,
either based on custom or statutory law, is to
prevent intrusion of a stranger into the family-
holding or property. A co-sharer under the law of
pre-emption has right to substitute himself in place
of a stranger in respect of a portion of the
property purchased by him, meaning thereby that
where a co-sharer transfers his share in holding,
the other co-sharer has right to veto such transfer

3
and thereby prevent the stranger from acquiring the
holding in an area where the law of pre-emption
prevails. Such a right at present may be
characterised as archaic, feudal and outmoded but
this was law for nearly two centuries, either based
on custom or statutory law. It is in this
background the right of pre-emption under statutory
law has been held to be mandatory and not mere
discretionary. The court has no option but to grant
decree of pre-emption where there is a sale of a
property by another co-sharer.�
From the aforesaid observations, it is amply clear that
the right of pre-emption is a sort of encumbrance carrying with
the land, which can be enforced by or against the co-owner of
the property only. This is because the main object behind the
right of pre-emption is to prevent intrusion by a stranger into
the family holding of a property. Section 17 of the Punjab Pre-
emption Act, 1913 also indicates this by stating that the co-
sharers or the heirs of a person can claim the right of pre-
emption. The provision reads as follows:
�17. Where several pre-emptors are found by the
Court to be equally entitled to the right of pre-
emption, the said right shall be exercised�
a) if they claim as co-sharers, in proportion
among themselves to the shares they already
hold in the land or property;
b) if they claim as heirs, whether co-sharers
or not, in proportion among themselves to the
shares in which but for such sale they would
inherit the land or property in the event of
the vendor�s decease without other heirs;
c) [Omitted]
d) [Omitted]
e) in any other case, by such pre-emptors in
equal shares.�
Thus, it is clear that in order to claim the right of

4
pre-emption, the plaintiff should have such right as, inter
alia, the co-sharer or heir of the said property.
In the matter at hand, though the respondent was declared
as a co-sharer by virtue of the decree dated 28.03.1984, the
said decree was set aside by the First Appellate Court, the
High Court as well as this Court. Thus, the respondent cannot
be considered as a co-sharer, and since it is so, he cannot
claim the right of pre-emption either.
Accordingly, the judgment of the High Court dated
21.02.2018 is liable to be set aside and Civil Case No. 260 of
1990 stands dismissed.
The appeal is allowed in the above terms.
����������������������J.
[MOHAN M.SHANTANAGOUDAR]
��������������������.J.
[KRISHNA MURARI]
NEW DELHI;
NOVEMBER 27, 2019

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ITEM NO.8 COURT NO.13 SECTION IV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 9064/2019
Arising out of SLP ( C) No. 11268 of 2018
SURAJ BHAN & ORS. Appellant(s)
VERSUS
GORAKH RAM Respondent(s)
Date : 27-11-2019 This appeal was called on for hearing today.
CORAM :
HON’BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR
HON’BLE MR. JUSTICE KRISHNA MURARI
For Appellant(s) Mr. P.S. Patwalia, Sr. Adv.
Mr. Rajat Singh, AOR

For Respondent(s) Mr. Vikas Mehta, AOR
Mr. Mithun Shashank, Adv.

      UPON hearing the counsel the Court made the following
                         O R D E R

Leave granted.
The appeal is allowed in terms of signed order.
(RAJNI MUKHI) (R.S. NARAYANAN)
SENIOR PERSONAL ASSISTANT COURT MASTER (NSH)
(Signed order is placed on the file)