R.S.A. No. 4045 of 2007 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 4045 of 2007 (O&M) Date of decision: 31.1.2009 Bimla Devi ....Appellant Versus Hari Chand and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. Rameshwar Malik, Advocate, for the appellant. Mr. Jagat Singh, Advocate, for respondent No. 1 Mr. R.K. Gupta, Advocate, for respondent No. 5. ***** VINOD K. SHARMA, J (ORAL) This order shall dispose of R.S.A. No. 4045 of 2007 titled Bimla Devi Vs. Hari Chand and others and R.S.A. No. 4044 of 2007 titled Bimla Devi Vs. Dharam Pal and others, as common questions of law and fact are involved. For brevity sake, facts are being taken from R.S.A. No. 4045 of 2007 This regular second appeal is directed against the judgments and decree dated 21.3.1994 and 17.10.2007 passed by the learned Courts below vide which the suit filed by the plaintiff/respondents seeking R.S.A. No. 4045 of 2007 (O&M) -2- possession by way of pre-emption stands decreed. The plaintiff brought a suit for possession by way of pre- emption of land measuring 19 kanals 5 marlas situated in the revenue estate of village Titokheri, Tehsil Safidon, District Jind on pleading that the vendor/defendants by registered sale deed dated 28.7.1989 sold the land for ostensible sale considration of Rs.90,000/- in favour of appellant/vendees, though it was claimed by the plaintiff that actual sale consideration was only Rs.45,000/-. The plaintiff sought to pre-empt the land by claiming himself to be co-sharer, whereas the appellant/vendees were said to be totally strangers to the suit land. The superior right of pre-emption was claimed. On notice having been issued, the defendant/appellant appeared and filed written statement raising preliminary objections with regard to the locus standi and partial pre-emption On merits, it was asserted that the actual sale consideration was Rs.90,000/-, and actually paid. The appellant/defendant also denied that the plaintiff was co- sharer of the land and, therefore, did not have any right to pre-empt the suit land. It was claimed that the plaintiff was, in fact, tenant and thus had no right to pre-empt the land. As two suits were filed by two of the co-sharers, a plea was also taken that the rival pre-emptors did not have any right to pre-empt the land. On pleadings of the parties, the following issues were framed: “1. Whether the plaintiff has superior right to pre- empt the sale as alleged? OPP 2. Whether the sale consideration of Rs.90,000/- was fixed in good faith and actually paid? OPD 3. If issue No. 2 not proved, what was the market R.S.A. No. 4045 of 2007 (O&M) -3- price of the suit land at the time of sale? OPP 4. Whether the plaintiff has no cause of action? OPD 5. Whether the plaintiff has no locus standi to file the present suit? OPD 6. Whether the suit is bad for partial pre-emption? OPD 7. Whether the suit land is not pre-emptable as alleged in preliminary objection No. 3 of written statement? 8. Whether the 1/5th pre-emption amount have not been deposited in time, if so its effect? OPD 9. Whether the defendant is entitled for stamps and registration charges in the event of suit being decreed, if so to what amount? OPD 10. Whether the defendant has effected any improvement on the suit land, if so to what effect and to what amount? OPD 11. Relief.” On appreciation of evidence brought on record, the learned trial Court was pleased to hold that the plaintiff had the superior right to pre-empt the sale. Issue No. 2 was decided in favour of the appellant/defendants and it was held that the sale consideration was Rs.90,000/-. In view of the finding on issue No. 2, issue No. 3 was treated to be redundant. Issue Nos. 4, 5, 7, 8 and 10 were decided in favour of the plaintiff having been not pressed. Issue No. 6 was also decided against the appellant/defendants holding that suit was not for partial pre-emption. Issue No. 9 was decided in favour of the appellant/defendants. Issue No. 10 was also disposed of having been not pressed, thus against the appellant/defendants. The appellant/defendants preferred an appeal against the R.S.A. No. 4045 of 2007 (O&M) -4- judgment and decreed passed by the learned trial Court. An application under Order 41 Rule 27 CPC was moved for leading additional evidence. The said application was ordered to be dismissed by observing as under: - “Since, it is settled law that the application for additional evidence under Order 41 Rule 27 CPC is to be heard along with the main appeal, therefore, I have heard the learned counsel for the appellant/applicant on the application for additional evidence as well as in the main appeal and I have heard the learned counsel for the contesting respondent and have perused the records of the case carefully. To my mind the evidence, which the appellant/defendant now wants to lead i.e. the evidence with regard to the partition of the land in suit shall not be necessary for the just and proper decision of the case because as has been detailed above, the present appeal has been remanded by the Hon'ble High Court for fresh decision in view of the law laid down by the Hon'ble Supreme Court of India Shyam Sunder and another Vs. Ram Kumar and another 2001(2) PLJ 332, wherein it was held that a pre-emptor to maintain a suit for pre-emption is required to prove his right of pre-emption on 3 important dates i.e. firstly on the date of sale, secondly when the suit is instituted and thirdly the right should continue to exist on the date of adjudication of suit. In this case, it was also held by the Hon'ble Supreme Court of India that the Punjab Pre-emption Act as amended by the Haryana Amendment Act 10 of 1995, which takes away the right of pre-emption of a co-owner (co-sharer) was prospective in operation and it does not affect the rights of parties to litigation on the date of adjudication of pre-emption suit and it was not with retrospective effect. Thus, the aforesaid amendment being prospective in nature so not applicable to the case in hand and the suit of the plaintiff/respondent could not be dismissed on account of aforesaid amendment whereby the right of pre-emption of co- owner has been taken away by the amendment in the year 1995 of Punjab Pre-emption Act. Moreover, as has been held in the aforementioned decision in Shyam Sunder's case (supra) the right of pre- emption is to be required to be proved on 3 important R.S.A. No. 4045 of 2007 (O&M) -5- dates i.e. date of sale, at the time of institution of the suit and at the time of final decision of the suit by the trial Court. Therefore, even if by way of proposed additional evidence it is proved that the land in suit has been partitioned the same order having been passed in the year 2000 shall be of no consequence because the decree for possession by way of pre- emption was passed as far back as in the year 1994. Therefore, allowing the application for additional evidence moved on behalf of the appellant is not necessary for the just and proper decision in the case and it shall be futile exercise and will further delay the decision of the cases which cases are pertaining to the year 1989. Therefore, the application for additional evidence is dismissed. So far as the merits of the case are concerned, a perusal of the records of the case it reveals that Hari Chand and Dharampal respondents i.e. the pre- emptors while appearing in the witness box averred that they were owners at the time of sale and at the time of institution of the suit and they were still co- sharer. Their statements find support from the entries in the jamabandi Ex. P2. On the contrary no evidence in rebuttal has been placed on record by the appellant, which could show that the respondent/plaintiffs were not the co-sharers. In the sale deed which has been pre-empted the appellant/defendant has claimed her title on the basis of the entries in the aforementioned jamabandi, therefore, it cannot be said that the document i.e. the jamabandi is false. Moreover, from a perusal of the sale deed it revelas that vendors had sold their shares only which shows that they were not in exclusive possession of the land sold and they were owners in possession of the same as co-sharers. Therefore, the findings of the learned lower Court under issues No. 1 and 10-A in civil suit No. 495 and issues No. 1 and 8-A in civil suit No. 496 of 1989 cannot be set aside on any of the grounds taken up by the appellants. The contentio of the learned counsel for the appellant that the appeal is a continuation of the suit, therefore, the pre-emptors have to show that their right was still existing at the time of decision of the appeal carries no substance in it in view of the aforementioned decision in Shyam Sunder's case (supra). Moreover, in a latest decision of our Hon'ble Punjab and Haryana High Court in Smt. Hajara Vs. Basher Ahmed 2007(4) RCR (Civil) 68. Placing reliance the decision of Hon'ble Supreme Court of India in the aforementioned Shyam Sunder's case it was held R.S.A. No. 4045 of 2007 (O&M) -6- that the amendment in Section 15 of the Punjab Pre- emption Act made in the year 1995 was prospective in nature and pendency of partition proceedings does not affect the rights of pre-emption, therefore, even if partition of the land in suit has been taken place in the year 2000 and the pre-emptors are no longer co sharers as they had been able to prove their right of pre-emption being co-sharers on the date of sale i.e. 28.7.1989 at the time of filing of the suit i.e. 12.8.1989 and at the time of decision of the suit in the trial Court on 21.3.1994 it cannot be said that they have lost their right of pre-emption on account of partition. Hence, the impugned judgment and decree dated 21.3.1994 passed by the learned Addl. Senior Sub Judge, Safidon, in civil suit No. 495 of 1989 and civil suit No. 496 of 1989 cannot be set aside on any of the grounds taken up by the appellant.” Mr. Rameshwar Malik, learned counsel, appearing on behalf of the appellant vehemently contends that following substantial questions of law arise for consideration in this appeal: - “1. Whether the mandatory provisions of law contained in Order 41 Rule 31 CPC have been violated? 2. Whether the appeal being continuation of the suit and partition proceedings having been finalised in the meanwhile, the learned lower appellate Court has committed a serious error of law while not taking into consideration this material change having taken place in spite of the fact that it was specifically brought to the notice of the Court by the appellant by moving an application under Order 41 Rule 27 for additional evidence? 3. Whether the learned Courts below have misread and mis-construed the documentary as well as oral evidence available on the record rendering the impugned judgments and decrees as unsustainable in law?” On the first substantial question of law, the learned counsel for the appellant by placing reliance on the judgment of this Court in Mehla Vs. Sita 2000(1) PLJ 85 contends that learned lower appellate Court R.S.A. No. 4045 of 2007 (O&M) -7- being final Court of fact was required to give its independent opinion on all the issues and could not have disposed of the appeal by affirming the findings recorded by the learned trial Court. This Court in the case of Mehla Vs. Sita (supra) has been pleased to lay down as under: - “In my view, this is no judgment at all in the eye of law. The learned Additional District Judge has forgotten the fact that the First Appellate Court is a final Court of fact and it has to deal with the issues independently on the basis of the material on record. The First Appellate Court cannot dispose of the matter by saying that the trial Court judgment is a well-reasoned judgment and all the issues have been decided correctly. It is the bounden duty of the First Appellate Court to deal with the issues and the evidence and then give his own findings either confirming or reversing the findings of the trial Court. The judgment of the Additional District Judge is most unsatisfactory. I am left with no option except to set aside the impugned decree and judgment of the learned Additional District Judge, Sangrur, and remand the matter to him for fresh disposal in accordance with law. The appeal is directed to be disposed of within 4 months from today.” However, on consideration of matter, I find no force in the contentions raised by the learned counsel for the appellant, as no such substantial question of law arises for consideration in this appeal. The reading of the judgment and decree impugned shows that the learned lower appellate Court while affirming the findings recorded by the learned trial Court has also given its finding. There is no bar under law for Court to adjudicate and decide all the connected issues together and record a finding thereon. The learned lower appellate Court recorded its own finding on contested issues. The other issues framed by the learned trial Court were deemed to be redundant in view of the finding recorded, and were not R.S.A. No. 4045 of 2007 (O&M) -8- under challenge before the learned lower appellate Court. It cannot be said that in spite of there being no challenge, the learned lower appellate Court was still bound to record its own finding on all the issues as contended, and the law laid down by this Court in Mehla Vs. Sita (supra) cannot be extended to that extent. The first substantial question of law does not arise for consideration by this Court in this regular second appeal, as there is no violation of Order 41 Rule 31 CPC as contended. In support of the second substantial question of law, as framed, the learned counsel for the appellant vehemently contends that the learned Courts below committed an error in rejecting the application moved by the appellant under Order 41 Rule 27 CPC without appreciating the fact that the appeal is continuation of proceedings and any evidence which came into existence during the pendency of the appeal, and is necessary for just and proper adjudication of the case, was required to be allowed to be brought on record. It is contended that there is a patent error in the judgment and decree passed by the learned lower appellate Court in rejecting the application. In support of this contention, the learned counsel for the appellant has placed reliance on the judgments of this Court in Zarina Begum Vs. Faquir Hussain 1990 PLJ 289 and Santokh Singh Vs. Lajja Ram and another, 1986 PLJ 496. This contention of the learned counsel for the appellant is totally mis-conceived. It is well settled law that for pre-emption, the plaintiff has only to show its superior right of pre-emption on the date of sale, on date of filing of the suit, and on the date of passing of decree by R.S.A. No. 4045 of 2007 (O&M) -9- the learned trial Court. The said right cannot be defended by subsequent events during the pendency of appeal. The learned lower appellate Court was right in rejecting the application for additional evidence as events which happened after the passing of decree were irrelavent for the purpose of adjudicating the right of pre-emption. The evidence sought to be led by the appellant were not such which could result in change of the decision of the learned trial Court. The additional evidence which is not necessary for adjudication of the case, deserves to be rejected and that is what the learned lower appellate Court has done. The second substantial question of law, as framed by the learned counsel for the appellant, also deserves to be answered against appellant. In support of third substantial question of law, the learned counsel for the appellant contends that the learned lower appellate Court completely misread the law of partition. The contention of the learned counsel for the appellant is that in view of the law laid down by this Court in Lala Ram Vs. The Financial Commissioner Haryana and others 1992 PLJ 45, it is to be held, that once the question of title and mode of partition are determined, the partition proceedings in so far as the right of parties are concerned come to an end. Therefore, the contention of the learned counsel for the appellant is that as mode of partition stood determined prior to the passing of decree by the learned trial Court, therefore, the plaintiff/respondent lost the superior right of pre-emption. The learned counsel for the appellant further contends that in view of the mode of R.S.A. No. 4045 of 2007 (O&M) -10- patition having been prepared prior to the passing of the decree by the learned trial court, it was incumbent upon the learned lower appellate Court to have taken into consideration the order of partition passed in favour of the appellant/defendant, though after the passing of decree. This contention also deserves to be noticed to be rejected. Section 121 of the Land Revenue Act clearly lays down that the parition between the parties is to take effect from the date as mentioned in the order. It is only for the purposes of filing an appeal that, this Court in Lala Ram Vs. The Financial Commissioner Haryana and others (supra) has held that the right of the parties gets finally determined on preparation of mode of partition, when not appealed against and the rights get crystalised. However, for the purpose of final partition, it is the final order which has to be seen and not mode of partition, as contended. It is not in dispute that the final parititon decree between the parties was passed after the passing of decree by the learned trial Court. The substantial question of law, as framed, also deserves to be answered against the defendant/appellant and in favour of the plaintiff/respondents. It cannot be said that the learned lower appellate Court has misread and misconstrued the evidence brought on record. The final contention of the learned counsel for the appellant by placing reliance on the judgment of this Court in Om Parkash Vs. Ram Singh and others 2007(4) PLR 302 is that once a law is declared to be ultra vires then the same has to be with retrospective effect. Thus, keeping in view that the notification taking away the pre-emption right of co-sharer, it has to be held that the said law never existed and, therefore, the judgments and decrees passed by the learned lower R.S.A. No. 4045 of 2007 (O&M) -11- appellate Court cannot be sustained. This contention of the learned counsel for the appellant is also mis-conceived. In view of the judgment of the Hon'ble Supreme Court, it is to be held that notification taking away right of pre-amption, or provision being declared ultra vires is to apply prospectively and not retrospectively as contended. This view of mine also finds support from the judgment of this Court in Lal Chand vs. Ganga Ram 2005 (Supp) Latest Judicial Reports 333. In view of findings recorded above, there is no merit in the present appeal. Dismissed in limine. (Vinod K. Sharma) Judge January 31, 2009 R.S.