RSA No.1422 of 2008(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1422 of 2008(O&M) Date of decision: 4.12.2008 Smt. Indro ......Appellant Versus Smt.Sita Rani and others ......Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. L.N. Verma, Advocate for the appellants. Rakesh Kumar Garg, J. This is defendant's second appeal challenging the judgment and decrees of the Courts below whereby the suit of the plaintiff- respondents for possession by way of pre-emption being co-sharers in the suit land, has been decreed. The plaintiff-Jagat Ram filed a suit praying for a decree for possession pre-empting the sale dated 5.4.1983 of the land measuring 3 kanals 8 marlas being 1/6th share of the total land measuring 20 kanals 10 marlas, compromised in khewat no.130, khatauni no.184, Rect. No.38 killa No.23(0-15), Rect.No.40 killa No.11/2(4-4), 12(8-0),13/1(7-11), (hereinafter called the land in dispute) sold by Jamna Bai widow of Munshi Ram to the defendant-Indro for a sale consideration of Rs.4000/-. It was alleged by the plaintiff that the sale of the land was actually effected for a sum of Rs.4000/- but in order to defeat the right of the plaintiff to pre-empt the sale, exaggerated amount of sale consideration was shown as Rs.6000/-. It was further alleged by the plaintiff that he was the son of vendor Jamna Bai and he was also co-sharer in the khewat of the land in dispute, therefore, he has superior right to pre-empt the sale dated 5.4.1983 of which he had no knowledge. RSA No.1422 of 2008(O&M) 2 The suit was contested by the defendant by means of her written statement dated 8.12.1984 on the grounds that the suit land was sold by Jamna Bai to her for actual sale consideration of Rs.6000/-. The market rate of the land in dispute was Rs.6000/-; that the plaintiff had the knowledge of the sale because he took active part in the execution of the sale deed; that he was also requested by the vendor to purchase the land but he refused. Therefore, he was estopped from filing the suit by his act and conduct; that he had no cause of action to file the suit; that his suit was barred by limitation; that the suit was not properly valued for the purpose of court fee and jurisdiction; that she (defendant) incurred the expenses of the stamp and registration for execution of the sale deed; that she also incurred a sum of Rs.1500/- on the improvement of the land in dispute. With these averments, the defendant prayed for the dismissal of suit. The trial Court vide the impugned judgment and decree held that the plaintiff being the son of the vendor of the land in dispute has no superior right to pre-empt the sale in question. However, he being the co- sharer in the khewat of the land in dispute with the vendor had superior right to pre-empt the sale. With these observations, issue No.1 was decided in favour of the plaintiff and against the defendant. Under issue No.2 learned trial Court held that the defendant incurred a sum of Rs.850/- on account of stamp and registration fee of sale deed dated 5.4.1983 (Ex.D-1) and that the defendant was entitled to recover this amount besides the sale consideration, if the suit of the plaintiff is decreed. With these observations, issue No.2 was decided against the plaintiff and in favour of the defendant. Under issue No.3 trial court held that the defendant did not incur any amount on the improvement of the land in dispute. Therefore, she was not entitled for any amount on account of the expenses of the improvement on the land in dispute. Therefore, issue No.3 RSA No.1422 of 2008(O&M) 3 was decided against the defendant and in favour of the plaintiff. Issues No.4 to 7 were decided against the defendant being not pressed. Under issue No.8, learned trial Court held that the market rate of the land in dispute was Rs.6000/-. Therefore, the sale consideration of Rs.6000/- was fixed in good faith and was actually paid by the vendee to the vendor. However, the trial Court decided this issue in favour of the plaintiff. Under issue No.9, trial Court decreed the suit of the plaintiff and passed a decree for possession by way of pre-emption of the land in dispute subject to the payment of Rs.5650/- after deducting Rs.1200/- already deposited by the plaintiff as 1/5th pre-emption money on 22.8.1986 besides the expenses of the stamp and registration of the sale deed. Feeling aggrieved against the aforesaid judgment and decree of the trial Court, the defendant filed an appeal which was dismissed by the Additional District Judge, Sirsa vide judgment and decree dated 6.2.2008. While dismissing the appeal, the Lower Appellate Court observed as under:- “The plaintiff claimed his superior right to pre-empt the sale in question on two grounds viz. being the son of the vendor and being the co-sharer in the khewat with the vendor. It is an admitted fact that the right of a son of the vendor to pre-empt the sale made by the father or mother had already been extinguished by the amendment made in the pre-emption Act, before the decision of the suit by the trial court. Therefore, the right of the plaintiff to pre-empt the sale being the son of the vendor was rightly declined by the trial court, and correctness have not been challenged.The suit of the plaintiff was decreed on the ground that he was co- RSA No.1422 of 2008(O&M) 4 sharer with the vendor in the khewat of the land in dispute, therefore, he had the superior right to pre-empt the sale. The suit was decreed by means of judgment and decree dated 22.7.1986. Therefore, Section 15 of Punjab Pre-emption Act, as applicable to Haryana, was amended vide Haryana Amendment Act No.10 of 1995 w.e.f. 7.7.1995 and vide this amendment the right of the co-sharers to pre-empt the sale effected by the other co- sharers was brought to an end. This amendment was made in the Act with prospective operations. Therefore, it was not applicable in the present suit which had already been decided by the trial Court on 22.7.1986. If any law on this point is required, then reference may be made to Sham Sunder and another Versus Ram Kumar and another 2001(2) PLJ.332 wherein the Full Bench of Hon'ble Supreme Court held that the amendment of Section 15 carried out by Haryana Amendment Act No.10 of 1995, which takes away the right of pre-emption of co-sharer, does not affect right of parties to litigation on the date of adjudication of the pre- emption suit. It is further held that substituted Section 15 in the absence of anything in it to show that it is retrospective, does not affect the rights of the parties which accrued to them on the date of suit and on the date of passing the decree by the court of first instance.” Still feeling aggrieved, the defendant-appellant has filed the instant appeal in this Court challenging the judgment and decrees of the Courts below raising the following substantial questions of law:- RSA No.1422 of 2008(O&M) 5 “1. Whether the Court has to settle the dispute as brought before it and cannot suo motu make out a new case in favour or against either party? 2. Whether the claim of the plaintiff to have a superior right to pre-empt the sale as being the son of the vendor having been found to be untenable in law, could the Court decree his claim on the ground of his being a co-sharer in the Khewat with the vendor despite such a claim having not been set up? 3. Whether evidence adduced beyond pleadings can be taken into consideration? 4. Whether the right of pre-emption being a piratical right and a relic of feudal past, can be defeated by all legitimate means? 5. Whether the pre-emption right being a piratical right and a relic of feudal past, where two views are possible, the one that defeats the pre-emption right and enables the vendee to retain the purchased property should be adopted? 6. Whether the right of pre-emption on the basis of blood relationship with the vendor having already been declared void by the Hon'ble Apex Court on 27.2.1986, i.e much before the plaintiff closed his evidence, the suit as originally filed could proceed further? 7. Whether issue No.8 could be decided in favour of the plaintiff and against the defendant-appellant in the face of categorical finding recorded thereunder that the sale had taken place for Rs.6,000/- and not for RSA No.1422 of 2008(O&M) 6 Rs.4,000/- as contended by the plaintiff?” Learned counsel for the appellant has vehemently argued that the Courts below have failed to appreciate that the case set up by the defendant was that he was entitled to pre-empt the sale being the son of the vendor and had nowhere pleaded or adduced any evidence to the effect that he had a superior right of pre-emption on the basis that he was a co-sharer with the vendor on the date of the sale and thus, the Courts below have made out a new case for the defendant-appellant that he was entitled to pre-empt the sale as being a co-sharer. It has been further argued that it is well settled that the Court has to decide the claim as brought and pleaded before it and cannot suo motu make out a new case in favour or against either of the party. Learned counsel has relied upon a judgment of the Hon'ble Apex Court in the case of Siddu Venkappa Devadiga v. Smt. Rangu S. Devadiga and others AIR 1977 SC 890 to contend that the Appellate Court cannot make out a new case which was not pleaded by the parties. Learned counsel has further argued that issue No.8 has been decided in favour of the plaintiff and against the defendant whereas the trial Court has given a categoric finding that the sale had taken place for Rs.6,000/- and not for Rs.4,000/- and thus, incorrect finding has been recorded. I have heard learned counsel for the appellant. The first contention of the learned counsel for the appellant is without any substance. There is no dispute with the proposition of law as settled by the Hon'ble Supreme Court of India in Siddu Venkappa Devadiga's case (supra). However, the aforesaid judgment of the Hon'ble Supreme Court is not applicable to the facts and circumstances of the case. From the facts recorded in the judgment, it has been clearly RSA No.1422 of 2008(O&M) 7 established that the plaintiff has filed the suit for a decree for possession by way of pre-emption on two grounds i.e being the son of the vendor and being the co-sharer in the Khewat with the vendor. I have perused the plaint with the help of the learned counsel for the appellant. In para 4 of the plaint, the plaintiff-respondent has clearly stated that he is son of vendor Jamna Bai and a co-sharer. The plaintiff-respondent has also proved this fact from the revenue record Ex.P3 i.e. Jamabandi for the year 1979-80 in which the plaintiff-respondent has been shown to be a co- sharer along with vendor Smt. Jamna Bai. Presumption of truth is attached with the entries of the Jamabandi. This document remained unrebutted. The trial Court has also recorded that during the course of arguments, learned counsel for the defendant has admitted that the plaintiff is a co- sharer. Thus, no fault can be found with the findings of the Courts below on issue No.1. As regards the second contention raised by the learned counsel for the appellant, the same is also without any substance. A perusal of the trial Court judgment shows that finding has been recorded in favour of the appellant to the effect that sale deed was for Rs.6,000/- and the appellant was also held entitled to expenses of Rs.850/- and in fact suit is also decreed on the condition that the plaintiff shall pay a balance sum of Rs.5650/- as he had paid Rs.1200/- as 1/5 amount while challenging the sale. Thus, even the trial Court has held the appellant entitled to sale amount at Rs.6,000/-. There seems only a typographical error only in the last line of the judgment on this issue which is insignificant. Moreover, the appellant has not challenged the findings of the trial Court on issue No.8 before the Lower Appellate Court. Learned counsel for the appellant was unable to point out from the judgment of the Lower Appellate Court that the said issue was raised by him before the Lower Appellate Court. In fact, RSA No.1422 of 2008(O&M) 8 there is no material on record from which it can be made out that the appellant has raised this point. In fact, the Lower Appellate Court has specifically stated that no other point was argued before it. There is no material on record to contradict this statement of fact. For the reasons recorded above, I find no merit in this appeal. No substantial question of law arises. Dismissed. December 4, 2008 (RAKESH KUMAR GARG) ps JUDGE RSA No.1422 of 2008(O&M) 9