Regular Second Appeal No. 1039 of 1991 1 In the High Court of Punjab and Haryana, at Chandigarh. Regular Second Appeal No. 1039 of 1991 Date of Decision: 9.7.2010 Tofa …Petitioner Versus Ishak …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Harsh Aggarwal, Advocate for the petitioner. Mr. Amit Jain, Advocate for the respondent. Kanwaljit Singh Ahluwalia, J. (Oral) In the present regular second appeal, concurrent findings of both the Courts below have been assailed on the ground that the appellant also become a co-sharer and no opportunity was afforded by the Appellate Court below to lead additional evidence. Before this question is determined, it is necessary to recapitulate brief facts of the case. Allahdin son of Budha, a co-sharer in the suit land sold the land to defendant Tofa, vide sale deed 8.10.1986, for a sale consideration of Rs.25,000/-. Ishak, a co-sharer in the land, instituted a suit pleading that as a co-sharer, he has pre-emptive right and, therefore, a decree be granted in favour of the plaintiff, for possession Regular Second Appeal No. 1039 of 1991 2 by way of pre-emption of the land mentioned in para No.1 of the plaint. The trial Court formulated the following issues:- “1. Whether the plaintiff has a superior right of the pre-emption as alleged? OPP 2. Whether the sale price was fixed in good faith? If so, what was the sale price? OPP 3. Whether the suit is bad for partial pre- emption? OPR. 4. Relief”. The trial Court gave the following findings regarding issue No.1:- “In support of this issue, the plaintiff has examined himself as PW.1 and deposed that the suit land was sold by Allahdin co-sharer in the consideration of Rs.25,000/-. The plaintiff submitted that he was not given any notice of sale of the suit land. He further submitted that he was co-sharer prior to sale, at the time of sale and is co-sharer till to day. He produced on file the copy of jamabandi for the year 1983-84 which is Ex.P3 and copy of sale deed dated 8.10.1986 which is Ex.P4. Ex.P2 is a copy of challan form, on perusal of Ex.P3 copy of jamabandi,it was observed that the plaintiff was co- sharer in the suit land prior to sale dated 8.10.1986 and at the time of sale and is co-sharer till today. Thus, the plaintiff has set up superior right of pre- Regular Second Appeal No. 1039 of 1991 3 emption and the issue is decided in favour of the plaintiff”. Ultimately, the suit was decreed in favour of the plaintiff. Aggrieved against the decree, the defendant had preferred an appeal. In appeal, an application was moved that the appellant/defendant be permitted to lead additional evidence to prove sale deed dated 8.10.1986 by which he became a co-sharer in the suit land also. The lower Appellate Court, while dealing with the application for leading additional evidence, observed as under:- “11. At the outset it would be expedient to decide the application for additional evidence filed by the appellant/defendant. The application is contested by the plaintiff. It is alleged in the application that after the sale deed in question, Allahdin vendor had again sold 13/1083 share in the suit land vide registered sale deed dated 8th September, 1987 vide this sale defendant had become co-sharer in the suit land and the impugned sale in question cannot be pre-empted by the plaintiff. It is also alleged that original registered sale deed dated 8th September, 1987 referred to above has been lost from the appellant and as such it was got evaded from the memory of defendant/appellant and as such it could not be produced in the lower Court. On account of the loss of said sale deed the mutation was not entered in the name of the Regular Second Appeal No. 1039 of 1991 4 appellant. Appellant/defendant recently regained memory of it and he obtained the copy of the sale deed from the office of Sub Registrar, Nuh, which, now, he wants to produce as additional evidence. As indicated earlier the application has been contested by learned counsel for the plaintiff/respondent by contending that if the additional evidence is allowed it will amount to fill up the lacuna at the stage of the appeal”. The lower Appellate Court dismissed the appeal and affirmed the findings of the trial Court. Learned counsel for the petitioner, during the course of arguments, has submitted that the following substantial question of law arise for determination of this Court:- “Whether co-sharer of the property has a superior right of pre-emption after the amendment, introduced in the Punjab Pre-emption (Haryana Amendment) Act, 1995”? Learned counsel further submits that an amendment was introduced in the Act on 4.5.1995 and the right of pre-emption only vests in tenant. To counter this, learned counsel for the respondent has relied upon a judgment rendered in Shyam Sunder and Another v. Ram Kumar and Another Judgments Today 2001(6) Supreme Court 94 wherein it was held as under:- “...48. The result of the aforesaid discussion is Regular Second Appeal No. 1039 of 1991 5 that the amending Act being prospective in operation does not affect 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”. Learned counsel for the appellant has failed to distinguish the judgment relied upon by learned counsel for the respondent. In view of the settled legal proposition propounded in Shyam Sunder's case (supra), it can be safely held that no substantial question of law arises in the present appeal to set aside the concurrent findings of both the Courts below. Hence, the present appeal is devoid of any merit and the same is hereby dismissed. (Kanwaljit Singh Ahluwalia) Judge July 9, 2010 “DK”