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2014 DIGILAW 852 (PNJ)

Dalip Singh (dead) through LRs. v. Shiv Mandir

2014-05-15

SATISH KUMAR MITTAL

body2014
JUDGMENT Mr. Satish Kumar Mittal, J.: - The plaintiff has filed this Regular Second Appeal against the judgments and decree passed by both the Courts below, whereby his suit for possession by way of pre-emption in respect of land measuring 5 Kanals 13 Marlas situated in the revenue estate of village Nakloi, on the ground of cosharership, has been dismissed. 2. The brief facts of the case are that Smt. Ram De and Smt. Dhanpati, who were co-sharers in the joint khewat, leased out the land measuring 5 Kanals 13 Marlas of their share for a consideration of Rs.8000/- to defendant No.1, namely, Shiv Mandir through defendant No.2 Gopi Ram for 85 years vide registered deed dated 16.11.1985 (Ex.P1). On 11.03.1986, plaintiff Dalip Singh, who was also one of the co-sharer in the joint khewat, filed a suit for pre-emption against the defendant for pre empting the aforesaid land on the ground of co-sharership while alleging that the aforesaid registered lease deed is nothing but a sale deed, as by the said lease for 85 years the land in dispute was permanently alienated in favour of the defendant. 3. The defendant contested the suit on various grounds including that the plaintiff was not a co-sharer in the joint khewat, and the aforesaid registered deed was a lease and not a sale, therefore, the pre-emption suit was liable to be dismissed. 4. The trial Court dismissed the suit while coming to the conclusion that the transaction (Ex.P1) is a lease deed and not a sale, therefore, the suit land is not pre-emptable. The appeal filed by the plaintiff was also dismissed and the finding of fact with regard to nature of the transaction that it was a lease not a sale was affirmed by the first Appellate Court. 5. Today, when this appeal has been taken up for regular hearing, no one has appeared on behalf of the appellant. However, the respondent is represented by the counsel. 6. 5. Today, when this appeal has been taken up for regular hearing, no one has appeared on behalf of the appellant. However, the respondent is represented by the counsel. 6. Learned counsel for the respondent argued that today in view of the amendment made in Punjab Pre-emption Act, 1913 vide Act No.10 of 1995, whereby the right of a co-sharer to pre-empt a sale by another cosharer in the joint khewat has been abolished, and the law laid down by the Hon’ble Supreme Court in Shyam Sunder and another v. Ram Kumar and another, AIR 2001 SC 2472 , the suit of the plaintiff for pre-emption on the ground of co-sharership cannot be decreed. Therefore, even if it is presumed for the sake of arguments that the transaction (Ex.P1) was a sale and not a lease, the suit of the plaintiff cannot be decreed. 7. I find force in the contention of the learned counsel for the respondent. 8. The right of pre-emption to pre-empt the sale of agricultural land on the basis of co-sharership has been abolished by making amendment in the Punjab Pre-emption Act, 1913, vide the Haryana Amendment Act, 1995. After the said amendment, no suit for pre-emption on the basis of co-sharership can be filed and decreed. It is well settled that a preemptor has to maintain his right to pre-empt the sale not only on the date of the sale, and on the date of filing of the suit, but also on the date of passing of the decree. A controversy arose as to whether the date of passing of the decree means the decree passed by the first court or the date of decree by the final appellate court. That controversy was finally settled by the Hon’ble Apex Court in Shyam Sunder’s case (supra), wherein it was held that a preemptor has to maintain his right to pre-empt the sale up to the date of passing of decree of first court and if he losses his right before passing of the decree of first court, his suit cannot be decreed. It was further held that if the suit was dismissed by the trial court and during the pendency of appeal against that judgment, by way of amendment right of pre-emption has been abolished, the suit cannot be decreed by the appellate court. 9. It was further held that if the suit was dismissed by the trial court and during the pendency of appeal against that judgment, by way of amendment right of pre-emption has been abolished, the suit cannot be decreed by the appellate court. 9. In the present case, suit of the plaintiff was dismissed vide judgment dated 5.10.1987 and appeal against the said judgment was dismissed on 12.8.1988. Thereafter, during the pendency of the second appeal, the aforesaid amendment was made. 10. In view of the said amendment and the law laid down by the Hon’ble Apex Court in Shyam Sunder’s case (supra), today no decree can be passed in favour of the appellant-plaintiff, therefore, the present appeal is bound to be dismissed, as today no right of pre-emption exists. Dismissed. —————————