R. S. A. No. 3028 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 3028 of 2007 Date of Decision : March 19, 2010 Ramesh Kumar .... Appellant Vs. Surat Singh and another .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Ashish Gupta, Advocate for Mr. Vikram Singh, Advocate for the appellant. Mr. Sanjiv Gupta, Advocate for respondent no. 1. * * * L. N. MITTAL, J. (Oral) : This is second appeal by Ramesh Kumar plaintiff, who was successful in the trial court, but was non-suited by the first appellate court. Satbir Singh – defendant-respondent no.2 sold 06 kanals 08 marlas land being 1/7th share of 44 kanals 17 marlas land to defendant no.1 Surat Singh, vide sale deed dated 28.05.1992. In the sale deed, sale consideration was depicted to be Rs.75,000/-. The plaintiff however alleged that the sale consideration actually paid was Rs.65,000/-. The plaintiff filed suit for pre-emption of the said sale on the ground of being co-sharer in the aforesaid joint land. Defendant no.1 contested the suit and controverted the R. S. A. No. 3028 of 2007 2 allegations of the plaintiff. Learned Sub Judge Ist Class, Karnal, vide judgment and decree dated 29.01.1994, decreed the suit of the plaintiff. Defendant no.1-vendee preferred first appeal. During pendency of that appeal, Punjab Pre-emption Act, 1913, as applicable to Haryana, was amended w.e.f. 07.05.1995 thereby repealing the right of a co-sharer to pre-empt sale of share of joint land. In view thereof, learned lower appellate court, vide judgment and decree dated 28.07.1995, allowed the said appeal and dismissed the pre-emption suit filed by the plaintiff. However, the plaintiff preferred second appeal in this Court, which was allowed vide order dated 11.09.2006 and first appeal was remanded to lower appellate court. Thereafter, learned District Judge, Karnal, vide judgment and decree dated 28.04.2007, allowed the appeal of the vendee-defendant no.1 and dismissed the pre-emption suit filed by the plaintiff. Feeling aggrieved, the plaintiff has filed the instant second appeal. I have heard learned counsel for the parties and perused the case file. Facts in this case are not in dispute. The plaintiff was co-sharer in the joint land, in which share was sold by defendant no.2 to defendant no.1. However, the plaintiff, during pendency of previous second appeal in this Court, sold his share in the joint land on 08.05.1998. On this ground, learned District Judge has dismissed the pre-emption suit of the plaintiff because he ceased to have preferential right of pre-emption. After hearing counsel for the parties, I find that following substantial question of law arises for determination in the instant second appeal :- “whether by sale of his share during pendency of appeal, the plaintiff can be non- suited ?” Learned counsel for the appellant vehemently contended that Constitutional Bench of Supreme Court in the case of Shyam Sunder and R. S. A. No. 3028 of 2007 3 others vs. Ram Kumar and another reported as (2001) 8 Supreme Court Cases 24 has answered the aforesaid question of law in favour of the plaintiff-appellant. It was held by the Supreme Court in the said case that amendment of Punjab Pre-emption Act, 1913, as applicable to Haryana vide Amendment Act dated 07.05.1995, whereby right of a co-sharer to pre- empt a sale was repealed, is prospective in operation. It was also held that pre-emptor is required to retain his preferential right of pre-emption till decree of court of first instance because thereupon rights of the parties get crystalized. It was observed that pre-emptor has to prove his preferential right of pre-emption on the date of sale, on the date of filing of the suit and till the date of decree of the trial court. On the other hand, learned counsel for the vendee-defendant no.1 vehemently contended that the plaintiff lost his preferential right of pre-emption during pendency of appeal and since appeal is continuation of suit, pre-emption suit of the plaintiff cannot be decreed. Reliance in support of this contention has been placed on a Single Bench judgment of this Court in the case of Santokh Singh vs. Lajja Ram and another reported as 1986 P. L. J. 496. Learned counsel for the appellant also referred to a judgment by Bench of two Hon'ble Judges of Hon'ble Supreme Court in the case of M/s Bay Berry Apartments Pvt. Ltd. and another vs. Shobha and others reported as 2007 (2) Civil Court Cases 032 (S. C.) to contend that the appeal is continuation of suit and appellate court may take into consideration subsequent events with a view to mould the relief. Reliance by counsel for respondent no.1 has also been placed on a Division Bench judgment of Hon'ble Supreme Court in the case of Amarjit Kaur vs. Pritam Singh and others reported as 1974 P. L. J. 406. I have carefully considered the rival contentions and perused the judgments cited at the bar by learned counsel for the parties. Judgment of Constitutional Bench of the Hon'ble Supreme R. S. A. No. 3028 of 2007 4 Court in the case of Shyam Sunder (supra) clinches the issue in favour of the plaintiff-appellant. It has been categorically laid down in this judgment that the pre-emptor has to maintain his right of pre-emption till date of decree of the court of first instance. It was also held that amendment of Punjab Pre-emption Act, as applicable to Haryana, during pendency of appeal, would not defeat the right of pre-emptor. In view thereof, Single Bench judgment in the case of Santokh Singh (supra) cannot be invoked and relied. In so far as judgment in the case of M/s Bay Berry Apartments Pvt. Ltd. (supra) is concerned, the same is a general observation that appeal is continuation of suit and appellate court may take into consideration subsequent events with a view to mould the relief. Even in the judgment of Constitutional Bench of the Hon'ble Supreme Court in the case of Shyam Sunder (supra), it was observed that appeal is continuation of suit. However, Constitutional Bench nevertheless held that pre-emption right has to be maintained till decree of the trial court and if the said right is lost during pendency of appeal, the pre-emptor cannot be non- suited. Consequently, judgment in the case of M/s Bay Berry Apartments Pvt. Ltd. (supra) has no applicability to the instant appeal relating to right of pre-emption. Judgment in the case of Amarjit Kaur (supra) relates to repeal of Punjab Pre-emption Act, as applicable to Punjab by the Repealing Act of 1973, which was held to be retrospective. However, amendment of Punjab Pre-emption Act, 1913, as applicable to Haryana, has been held to be prospective in the case of Shyam Sunder (supra). Consequently, judgment in the case of Amarjit Kaur (supra) has no applicability to the instant case. In view of the aforesaid, the substantial question of law framed herein above, is answered in favour of the plaintiff and it is held that sale of his share of land by the plaintiff during pendency of appeal is not sufficient to non-suit the plaintiff-appellant. Accordingly, judgment and decree of the R. S. A. No. 3028 of 2007 5 lower appellate court are illegal and unsustainable. The instant second appeal is, therefore, allowed. Judgment and decree dated 28.04.2007, passed by learned District Judge, Karnal are set aside and judgment and decree dated 29.01.1994 passed by learned Sub Judge Ist Class, Karnal are restored. The plaintiff – pre-emptor shall deposit the balance pre-emption money within two months from today with the trial court. March 19, 2010 ( L. N. MITTAL ) monika JUDGE