RSA No.2281 of 1992 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2281 of 1992 Date of Decision: 24.04.2009 Rawla ..Appellant Vs. Ibrahim & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Arun Jain, Sr. Advocate, with Mr.Amit Jain, Advocate, for the appellant. None for the respondents. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. (Oral) This regular second appeal is directed against the judgment and decree dated 19.8.1992 passed by learned lower appellate court vide RSA No.2281 of 1992 2 which suit filed by the plaintiff-appellant seeking possession by way of pre- emption has been ordered to be dismissed. The plaintiff/appellant brought a suit on the plea, that Bhonta was the owner in possession of agricultural land to the extent of half share. He without knowledge of the appellant/plaintiff and without issuing notice, sold the suit land in favour of defendants No.1 to 8 for ostensible consideration of Rs.36,000/- by way of registered sale deed dated 4.1.1985. In fact, the sale consideration was only Rs.10,000/-. It was also the case of the plaintiff that the remaining sum of Rs.26,000/- was fictitiously shown in the sale deed in order to deprive the plaintiff of his right of pre-emption. The plaintiff claimed that he had a superior right of pre-emption, being co- sharer in the suit land as also in the khewat out of which the land was sold . On notice, initially defendants No. 1 and 4 contested the suit by filing a written statement, by raising an objection that the suit was bad for partial pre-emption and that 1/5th pre-emption money has not been deposited within time. On merit, it was claimed that total sale consideration of Rs.36,000/- was paid to the vendor and in case suit is decreed they also claimed registration charges besides the sale consideration. Defendant No.8 filed a separate written statement wherein a plea was taken that the plaintiff/appellant had no locus standi to file the present suit, that the suit was bad for partial pre-emption. Objection was also raised with regard to the maintainability of the suit on the ground that 1/5th pre-emption money had not been deposited within time. It was RSA No.2281 of 1992 3 reiterated that the sale consideration was paid. Plea was also raised that the suit land is mortgaged with possession to Khurshid etc. as such rights of mortgagor including the plaintiff have been extinguished with lapse of redemption right, and that the plaintiff was no longer co-sharer of the suit land. Defendant No.8 also claimed to be the co-sharer in the suit land prior to the filing of the suit. In the replication the averments made in the plaint were reiterated and that of written statement were denied. Learned trial court was pleased to decree the suit filed by the plaintiff-appellant on 26.4.1991 on payment of Rs.36000/- as sale consideration and Rs.5000/- towards registration charges i.e. Rs.41,000/- less 1/5th pre-emption money already deposited. The amount was ordered to be paid within one month failing which it was ordered that the suit shall stand dismissed. The defendant/respondent No.8 preferred an appeal against the judgment and decree of the learned trial court. The appeal was accepted vide judgment and decree dated 19.8.1992 primarily for the reason that after the filing of the suit the plaintiff/appellant lost his superior right of pre- emption as co-sharer, in view of the sale deed executed by him on 4.8.1986. The finding of the learned trial court was reversed and the judgment and decree passed by the learned lower appellate court was set aside and the suit filed by the plaintiff/appellant was ordered to be dismissed. It may be relevant to note here that after the sale by the plaintiff-appellant of his share on 4.8.1986, defendants No.1 to 7 entered RSA No.2281 of 1992 4 into a compromise with the plaintiff on 6.6.1988 and they relinquished their right in favour of the plaintiff/appellant. Mr.Arun Jain, learned senior counsel appearing on behalf of the appellant contended that this appeal raises the following substantial question of law: “Whether in order to succeed in suit for pre-emption the plaintiff is only required to prove his uninterrupted superior right of pre-emption on the date of sale, on the date of filing the suit and, on the date of passing of the decree by the learned trial court or he has to have uninterrupted superior right of pre-emption on the date of sale, on the date of filing of a suit and decree by trial court?” In support of the substantial question of law, learned senior counsel for the appellant contends that the judgment and decree passed by the learned Additional District Judge, Gurgaon is liable to be reversed as the learned lower appellate court has failed to notice that, in fact, the plaintiff/appellant must have the superior right of pre-emption on the date of sale i.e. 4.1.1985 as also on the date of filing the suit i.e. 2.1.1986 on the date of decree i.e. 26.4.1991 which may not be uninterrupted. As subsequent to sale by him on 4.8.1986 he had acquired right of other co- sharer under a compromise dated 6.6.1988 entered into between the plaintiff and defendants No.1 to 7 vide which they relinquished their right in favour of the plaintiff. The case of the plaintiff/appellant was that even on the date of passing of the decree by the learned trial court the plaintiff had a RSA No.2281 of 1992 5 preferential right of pre-emption as he again acquired the status of co-sharer under the deed of compromise dated 6.6.1988. In support of this contention learned senior counsel for the appellant placed reliance on the Full Bench judgment of this court in the case of Ramji Lal and another Vs. The State of Punjab & Ors. 1966 PLR 345, wherein Hon'ble Full Bench of this Court answered the following three referred questions:- “1. Whether a pre-emptor in whose favour a pre-emption decree has been given in the first Court should retain superior right of pre-emption till the hearing of the appeal by the vendee against the decree and whether the impugned notification issued during the pendency of the appeal against the decree in the present case, successfully takes away the already exercised right of pre-emption of the petitioners (pre-emptors) so as to defeat their suit in appeal? (ii) Whether section 8 (2) of Punjab Act I of 1913 confers arbitrary, unguided and uncancalised power on the state Government to take away the right of pre-emption, and is on that ground constitutionally invalid; or whether when that provision is read with section 9 of the very Act it provides sufficient statement of policy and guidance by the Legislature for the exercise of the power of the State Government under section 8 (2) of RSA No.2281 of 1992 6 that Act and thus that sub-section is not an invalid piece of legislation on the ground already stated above? (iii) Whether the impugned notification of September 3, 1962, is ultra vires the powers of the State Government under section 8 (2) of Punjab Act 1 of 1913 and whether it is invalid because it has been issued mala fide to the injury of the petitioners and to the advantage of respondents 2 and 3? Hon'ble Full Bench of this Court was pleased to lay down that superior right of pre-emption should exist till passing of the decree by the learned trial court and any change thereafter was not to affect the right of pre-emptor. Thus, it may be seen that the finding of Hon'ble Full Bench would not be relevant to decide the substantial question of law raised in this appeal or in any case would go against plaintiff/appellant as words used are till the decree by trial court. Learned senior counsel for the appellant made reference to certain observations of Hon'ble Full Bench in answering question No.1 wherein Hon'ble Full Bench has been pleased to lay down that it is incumbent upon the plaintiff to prove that his right of pre-emption on the date of decree i.e. the date on which the case is disposed of by the first court. It matters little whether the court of first instance actually dismissed or decreed the suit. One of the reasons given, also reads that it is the settled rule in pre-emption law that the preemptor must maintain a RSA No.2281 of 1992 7 qualification to pre-empt up to the date of decree of the first court only, whether the decree is one dismissing or decreeing the suit. Reference was also made to the judgment of Hon'ble Supreme Court in the case of Shyam Sunder and another Vs. Ram Kumar and another 2001 (2) PLJ 332, wherein Hon'ble Supreme Court has been pleased to lay down as under:- “18. In modern time, the right of pre-emption based on statutes is very much a maligned law. During hearing of these appeals such rights have been characterized as feudal, archaic and outmoded and so on. But its origin which was based on custom and subsequently codified was out of necessity of the then village community and society for its preservation, integrity and maintenance of peace and security. In changed circumstances, 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 stranger into the family holding of property. A co-sharer under law of pre-emption has right to substitute himself in place of stranger in respect of portion of the property purchased by him RSA No.2281 of 1992 8 meaning thereby where a co-sharer transfers his share in holding, the other co-sharer has right to veto such transfer and thereby prevent the stranger from acquiring the holding in an area where law of pre-emption prevails. Such a right at present may be charactersied as archaic, feudal and out-moded 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. And for that reason the Courts consistently have taken view that where there is a sale of holding or property by a co- sharer, the right of a pre-emption is required to be settled at the earliest either on pre-emptor's proving his qualification to pre- empt on the date of the sale, on the date of filing of suit, and on the date of the decree of the Court of the first instance or vendee improving his status till the adjudication of suit for pre- emption and after adjudication of suit any loss of qualification by the pre-emptor or vendee improving his status equal or above to right of pre-emptor is of no consequence. In Zehur Din vs. Jalal Din (supra) a Full Bench of Lahore High Court while expressing necessity for settlement of rights of the parties at the earliest, held thus: “It seems to be essential that a line should be drawn at RSA No.2281 of 1992 9 some stage when the race between a pre-emptor and a vendee ought to come to an end and after having the well-known landmark of the date of the sale behind – as one now must – the farthest limit that can be granted to a vendee is that of the time if adjudication of the suit by the trial Court. Xx xx xx xx” 48. The result of the aforesaid discussion is that the Amending Act being prospective in operation does not effect the rights of the parties to the litigation on the date of adjudication of the pre-emption suit and the Appellate Court is not required to take into account or give effect to the substituted Section 15 introduced by the Amending Act.” However, on consideration of matter, I find no force in the contentions raised by the learned senior counsel for the appellant. The judgment of Hon'ble Supreme Court in the case of Sham Sunder and another Vs. Ram Kumar and another (supra) is not relevant to the point in issue as the Hon'ble Supreme Court has merely held that the amendment of law was prospective in nature. The plaintiff/appellant has not been non-suited due to change of law but by holding that the plaintiff had failed to prove that he had a superior right of pre-emption on the date of sale, on the date of filing the suit had continuous superior right till the passing of the decree. The contention of the learned counsel for the appellant that even if the superior right of pre-emption is lost by the plaintiff during the RSA No.2281 of 1992 10 pendency of suit, and is regained subsequently would not make any difference, cannot be accepted as the superior right of pre-emption is to be uninterrupted till passing of decree by trial court. In true interpretation of settled law it has to be held that superior right of pre-emption of the plaintiff should continue uninterrupted till the decree by the learned trial court. That is what has been held by the learned lower appellate court. The substantial question of law raised is answered against the appellant. Consequently, finding no merit in the present appeal it is dismissed but with no order as to costs. 24.04.2009 (Vinod K.Sharma) rp Judge