Research › Search › Judgment

Punjab High Court · body

2003 DIGILAW 212 (PNJ)

Om Parkash v. Uda Ram

2003-02-05

R.L.ANAND

body2003
Judgment R.L.Anand, J. 1. Unsuccessful plaintiff Om Parkash has filed the present regular second appeal and it has been directed against the judgment and decree dated 2.5.1996 passed by the learned Additional District Judge, Sirsa, who dismissed the appeal of the appellant by holding that he has no superior right of pre-emption which has been taken away through the amendment in the Punjab Pre-emption Act, 1913 incorporated by the Government of Haryana vide Amendment Act published in the Gazette Notification dated 17.5.1995. 2. The brief facts of the case are that plaintiff Om Parkash filed a suit for possession by way of pre-emption of the land measuring 28 kanals 8 marla being 1/8th share of the land measuring 49 kanals, 15 marlas fully detailed in the head-note of the plaint, situated at village Mammera, Tehsil and District Sirsa along with all rights pertaining thereto. It was averred by the plaintiff that Kasturi Lal, Subhash Chander, Sudesh Rani and Neelani Rani had inherited the suit land to the extent of 1/2 share after the death of Lachhman Dass and that Kasturi Lal had sold the suit land to the, defendant-vendees and delivered the possession against a payment of Rs. 25,000/- vide registered sale deed dated 12.7.1991 registered with the Sub-Registrar, Ellenabad, District Sirsa. The plaintiff and his family members had also purchased the land in the same khewat from other legal heirs of Lachhman Dass i.e. Subhash Chander vide registered sale deed No. 363 dated 12.6.1991 registered in the office of Sub-Registrar, Ellenabad and mutation No. 2161 was duly sanctioned in his favour and thus he was a co-sharer in the joint khewat of the suit land. According to the plaintiff, the sale consideration, in fact, was Rs. 25,000/- but to avoid the pre-emption the defendants had got entered a fictitious sale consideration of Rs. 28,000/- in the sale deed which was not binding upon him. 3. Notice of the suit was given to the defendants who filed their written statement and contested the suit by pleading that the actual sale consideration was fixed at Rs. 28,000/- and was actually paid and not Rs. 25,000/-. The actual physical possession of the suit land had already been delivered to the defendants as tenants. Therefore, the plaintiff has no superior right of pre-emption as a co-sharer in the suit. 4. 28,000/- and was actually paid and not Rs. 25,000/-. The actual physical possession of the suit land had already been delivered to the defendants as tenants. Therefore, the plaintiff has no superior right of pre-emption as a co-sharer in the suit. 4. The plaintiff filed replication to the written statement of the defendants in which he reiterated the averments of the plaint by denying those of the written statement. 5. From the pleadings of the parties, the learned trial Court framed the following issues:- "1. Whether the plaintiff has a superior right to pre-empt the sale in question as alleged? OPP 2. Whether the sale took place for a consideration of Rs. 28,000/- which was fixed in good faith and actually paid to the vendor at the time of sale in question? OPD 3. If issue No.2 is not proved what was the market value of the suit land at the time of sale in question? OPP 4. Whether the suit of the plaintiff is not maintainable in the present form? OPD 5. Whether the plaintiff has got no cause of action and locus standi to file the suit? OPD 6. Whether the suit is beyond limitation? OPD 7. Whether the defendants incurred the stamps and registration charges for getting the sale deed registered, if so, to what effect? OPD 8. Whether the defendants have improved the suit land after its purchase, if so, to what effect and to what amount they are entitled? OPD 9. Whether the plaintiff has not come to the court with clean hands, if so, its effect? OPD 10. Relief." 6. The parties led evidence in support of their respective cases. The learned trial Court vide judgment and decree dated 16.11.1994 came to the conclusion that the plaintiff could not prove his superior right of pre-emption with regard to the sale in question and, therefore, issue No. 1 was decided against the plaintiff and the suit was dismissed. 7. Aggrieved by the judgment and decree dated 16.11.1994 passed by the learned Senior Sub Judge, Sirsa, plaintiff Om Parkash filed the first appeal in the court of Additional District Judge, Sirsa, who vide impugned judgment and decree dated 2.5.1996 dismissed the appeal and aggrieved by the said judgment and decree, the present regular second appeal. 8. 7. Aggrieved by the judgment and decree dated 16.11.1994 passed by the learned Senior Sub Judge, Sirsa, plaintiff Om Parkash filed the first appeal in the court of Additional District Judge, Sirsa, who vide impugned judgment and decree dated 2.5.1996 dismissed the appeal and aggrieved by the said judgment and decree, the present regular second appeal. 8. The reasons of dismissal of the appeal are incorporated in para No. 8 of the judgment, which are reproduced as follows:- "8. There is no need to go into the merits of the case in view of the amendment in the Punjab Pre-emption Act, 1913 by the Haryana Government vide Amendment Act published in the Gazette Notification dt. 17.5.95 as by virtue of the said amendment the right of pre-emption vests only in the tenants and not in the co-sharers. Though the plaintiff-appellant has placed on file copy of jamabandi for the year 1991-92, Ex.P.10 and photocopy of mutation No.131 Ex.P-11 and sale deed No.2544 dt. 12.6.91 Ex. P12 in their additional evidence to show that he was a co-sharer in the land because the learned trial court has held him not to be a co-sharer in the suit land, but then also he has no right of pre-emption in view of latest amendment in the Punjab Pre-emption Act because according to the same a co-sharer has no right to pre-empt the suit land. Moreover, in (1996-2)113 P.L.R. 321 (S.C.) Karan Singh and others v. Bhagwan Singh (dead) by LRs and others and 1995 H.R.R. 313 Virsa Singh Kamboj \. Darshan Singh Datta and others it has been held by our own Honble High Court and Honble Supreme Court of India that the said amendment is applicable to the pending proceedings because the right of pre-emption should be available at all the stages including the final stage. It is also held that the decree of the trial Court gets emerged with the decree of the appellate Court, therefore, the Court of appeal shall have all the powers and shall perform as nearly as may be the same duties as are conferred and imposed on the Court of original jurisdiction. When the appeal is pending it is of continuation of the original proceedings the entire issue remain at large. When the appeal is pending it is of continuation of the original proceedings the entire issue remain at large. It was also held in these citations that the court can take judicial notice of the change in law and mould the relief on the basis of the right holder under the amended law. Thus, in view of the facts that the Haryana Government Amendment Act, 1995 came into force with effect from 17.5.95 and the only person entitled under the amended law to avail the right of pre-emption is the tenant whose vendor had sold the whole or a part thereof to the third party. It would, therefore, be clear that as on the date the plaintiff has no right to claim pre-emption under the Act as amended under the Amendment Act, 1995 as he had claimed his pre-emption right on the basis of co-shareship which has ceased to exist in view of the above said amendment in the Punjab Pre-emption Act and the appellate court can take into account the amendment made by the Haryana Government." 9. I have gone through the impugned judgment and in my opinion this judgment cannot be sustained in the eyes of law. The appeal was dismissed mainly on the ground that during the pendency of the appeal the right of pre-emption of a co-sharer has been taken away by the amendment introduced by the Government of Haryana vide Haryana Amendment Act, 1995 to the parent Act i.e. Punjab Pre-emption Act, 1913, as applicable to the State of Haryana, and, therefore, the plaintiff-appellant has lost is superior right of pre-emption. The position of law has been interpreted by the Honble Supreme Court in Shyam Sundar and others \. Ram Kumar, 1 A.I.R. 2001 S.C. 2472. The present suit was instituted on 16.7.1992. The first appeal was instituted on 24.11.1994 and it was disposed of on 2.5.1996. During the pendency of the appeal the amendment came in the Act and the point for considerations whether this amendment will apply prospectively or retrospectively and this point has been answered by the Honble Supreme Court in the above-cited case where it was held that this amendment has to be applied prospectively and not retrospectively. During the pendency of the appeal the amendment came in the Act and the point for considerations whether this amendment will apply prospectively or retrospectively and this point has been answered by the Honble Supreme Court in the above-cited case where it was held that this amendment has to be applied prospectively and not retrospectively. Meaning thereby that the superior right of pre-emption of a co-sharer shall be deemed to have been taken away after the amendment which has been introduced in the parent Act and the amendment will not defeat those sale deeds and the rights of the co-sharers which have been acquired by them before the amendment came into force. This aspect of the case has not been examined by the first Appellate Court which has adopted a cut short method by making a sweeping observation that as the superior right of pre-emption has been taken away by he amendment of a co-sharer, therefore, the appeal of Om Parkash is not maintainable and the same deserved to be dismissed. This court is not in agreement with the observations of the first Appellate Court as those are contrary to the law and the interpretation of the Honble Supreme Court in Shyam Sundars case (supra). 10. In these circumstances, this appeal is allowed and the judgment and decree of the Appellate Court is set aside and the case is remanded back to the Court of learned Additional District Judge, Sirsa, who is directed to restore the appeal to its original number and decide the same in accordance with law within six months from the receipt of the copy of the order after giving notice to both the parties. There shall be no order as to costs. Records of the Courts below be sent to the first Appellate Court forthwith.