RSA No.2456 of 1995 (O&M) - 1 – IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** RSA No.2456 of 1995 (O&M) DATE OF DECISION: 09.11.2010 **** Hardayal Singh and others . . . . Appellants Vs. Kiru Ram and others . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: - Mr.C.M. Munjal, Advocate for the appellants. Mr.Arvind Singh, Advocate for the applicant/respondent No.1. **** RAKESH KUMAR JAIN J. (ORAL) CM No.8569-C-2009 and RSA No.2456 of 1995 This is an application filed under Section 151 of the Code of Civil Procedure, 1908 (for short ‘CPC’) for fixing the appeal for an actual date of hearing as it is alleged to be covered by decision of the Supreme Court in the case titled as “Shyam Sunder and another Vs. Ram Kumar and another” 2001(3) RCR (Civil) 754 in which it has been held that amendment in the Punjab Pre-emption Act, 1913 as amended by Haryana Amendment Act, 1995 is prospective in nature. Pursuant to the notice in the application, Mr.C.M. Munjal, Advocate has put in appearance on behalf of the non- applicants/appellants. RSA No.2456 of 1995 (O&M) - 2 – Learned counsel for the applicant/respondent No.1 has submitted that the plaintiff/respondent No.1 filed a suit for possession by way of pre-emption of the land measuring 7 kanals 17 marlas being co- sharer which is alleged to have been sold by Yashpal to defendants No.1 to 4 by way of sale deed dated 6.12.1982 for a consideration of `49,000/- without notice to him. The Suit was contested only by the vendees as the vendor was given up. On the basis of the evidence led by the parties, the learned trial Court vide its judgment and decree dated 6.02.1995 decreed the suit holding the plaintiff to be a co-sharer having superior right to pre-empt the sale. Aggrieved against the judgment and decree of the trial Court, vendees had filed Civil Appeal No.56 of 1995 titled as Hardayal Singh and others Vs. Kiru Ram and others. The learned First Appellate Court decided five appeals together as the question of law involved in all the five appeals was identical. The only arguments raised before the First Appellate Court by the vendees was that after the amendment of the Punjab Pre-emption Act, 1913 (for short ‘the Act’) which came into force w.e.f. 7.5.1995, the right of pre-emption of co-sharer has been abolished and as appeal is the continuation of suit the pre-emptor has to maintain his right upto finality of the proceedings. The learned First Appellate Court decided all the five appeals separately and while deciding the appeal in present case i.e. Civil Appeal No.56 of 1995 titled as Hardayal Singh and others Vs. Kiru Ram and others, held that “further the plaintiff is proved to be co-sharer from the entries in the Jamabandis for the years 1983—84, Exhibits P3 and P4, read with the oral testimony led by the plaintiff, and as such he has superior right of pre-emption and thus the findings of the learned trial Court on issue No.1 is affirmed. However, the appeal filed by the vendees was dismissed by taking a view that the amendment in the Act by way of Haryana Amendment Act, 1995 would not operate retrospectively. Aggrieved against the judgment and decree of the First Appellate Court dated 12.10.1995, the present appeal has been filed by the vendees which was admitted on 22.02.1996 and their dispossession was stayed. Thereafter, the present applicant/respondent No.1 filed two applications for early hearing of the appeal but the same were dismissed. RSA No.2456 of 1995 (O&M) - 3 – Learned counsel for the applicants/respondent No.1 has submitted that the right of the pre-emptor is to be seen at the time of sale, suit and the decree. The date of sale deed is 6.12.1992. The Suit was filed on 16.07.1993 which was decreed on the basis of his superior right on 16.02.1995. Thus, the right of the pre-emptor was crystallized before coming into force of the Haryana Amendment Act, 1995 as it came into force w.e.f. 7.05.1995. These facts are not disputed by the learned counsel for the non-applicants/appellants. In view of the said undisputed facts, learned counsel for the applicant/respondent No.1 has relied upon the ration of law in the case of Shyam Sunder and another (Supra) in which it has been held that the amendment Act would not operate retrospectively as the same is not a declaratory Act. The relevant findings are as under: - “46. We have already quoted substituted section 15 of the amending Act but do not find that the amending Act either expressly or by necessary implication intended to supply an omission or to clear up a doubt as to the meaning of previous Section 15 of the parent Act. The previous Section 15 of the parent Act was precise, plain and simple. There was no ambiguity in it. The meaning of the words used in Section 15 of the parent Act was never in doubt and there was no omission in its phraseology which was required to be supplied by the amending Act. Moreover, the amending Act either expressly or by implication was not intended to be retroactive and for that reason we hold that the amending Act 10 of 1995 is not a declaratory Act and, therefore, it has no retrospective operation. In fact, in that case, there were two judgments which were brought to the notice of the Apex Court having conflicting the views of the RSA No.2456 of 1995 (O&M) - 4 – Courts namely, the case of “Didar Singh etc. Vs. Ishar Singh” 1994(1) Scale 1 and “Ramjilal and others Vs. Ghisa Ram etc.” 1996(2) RCR (Civil) 456 (SC). In the Case of Didar Singh etc. (supra), the view expressed was that the right to pre-empt must exist upto the date of the decree of First Court only not to the Appellate Courts whereas in the case of Ramjilal and others (supra), the view was that the right to pre-empt must exist upto the date of decree of final Appellate Court. The Supreme Court in para No.47 of the judgement in the case of Shyam Sunder and another (Supra) held as under: “For the aforestated reasons, we approve the view of law taken in Didar Singh etc. Vs. Ishar Singh (dead) by LRs (Supra) and further hold that the decision in the case of Ramjilal and others (Supra) does not lay down the correct view of law.” Thus, from the authoritative judgement of the Constitutional Bench of the Supreme Court, it is clear that the amendment Act which came into force after the decree of the trial Court would not effect right of the pre-emptor which had crystallized on the date when the decree of the trial Court was passed. In view thereof, present application is allowed and consequently the appeal is found to be without any merit and hence, the same is hereby dismissed. (RAKESH KUMAR JAIN) NOVEMBER 09, 2010 JUDGE Vivek