Regular Second Appeal No. 2222 of 1995 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No.2222 of 1995 Date of decision: 23.09.2009 1.Roshan Lal, 2. Balwan, 3. Puran Singh, sons of Hari Singh s/o Nanha Ram, rs/o village Karsa Chor Tehsil Assandh, District Karnal. ..... Appellants. Versus 1. Sadhu s/o Kundan, 2. Randhir s/o Mansa Ram, rs/o village Karsa Chor, Tehsil Assandh, District Karnal. ..... Respondents. CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:- Mr.Vikram Singh, Advocate for the appellants. Mr. Sandeep Chhabra, Advocate for respondent no.1. Respondent no.2 ex-parte. Sham Sunder, J. This Regular Second Appeal is directed against the judgment and decree dated 17.12.1993, rendered by the Court of Sub Judge IInd Class, Karnal, vide which it decreed the suit of the plaintiff/respondent and the judgment and Regular Second Appeal No. 2222 of 1995 -2- decree dated 19.09.1995, rendered by the Court of District Judge, Karnal, vide which the appeal was dismissed. 2. The brief facts of the case, are that defendant no.1/respondent, was a co-sharer in possession of agricultural land measuring 39 kanals 0 marla, as fully detailed in the plaint. He sold the land, in favour of defendant nos. 2 to 4/appellants, for a sale consideration of Rs.1,95,487/-, vide sale deed, executed on 08.11.1991, and registered on 11.11.1991, in order to defeat the right of the plaintiff, who was a co-sharer, to pre-empt the sale. In fact, the suit land was sold, as per the market value, for a sum of Rs.1,75,487/-. It was stated that no notice, as required under Section 19 of the Pre-emption Act, was served upon the plaintiff before the sale, in question. It was further stated that the plaintiff, being a co- sharer was having superior right and, as such, was entitled to pre-empt the sale. Despite a number of requests having been made to the defendants, by the plaintiff to pre-empt the sale, they refused to admit his claim. Ultimately, a suit for possession by way of pre-emption was filed. 3. Defendant nos. 2 to 4/ appellants put in appearance, and contested the suit, by way of filing a joint written statement, wherein, it was pleaded that the plaintiff had Regular Second Appeal No. 2222 of 1995 -3- neither locus standi, nor cause of action to file the suit; that the plaintiff was estopped from filing the suit, by his own act and conduct; that the plaintiff had waived off his right of pre- emption; that the suit was barred by time; and that no proper Court fee was affixed by the plaintiff. It was stated that the sale, in question, took place, for a sum of Rs.1,95,487/-. Besides this, a sum of Rs.10,000/- was spent for effecting improvement in the land. The right of the plaintiff to pre- empt the sale, was denied. It was further stated that the plaintiff was not a co-sharer in the land, in dispute, as the same had already been partitioned. The remaining averments, contained in the plaint, were denied, being wrong. 4. From the pleadings of the parties, the following issues were framed by the trial Court :- “1- Whether the plaintiff being co-sharer in the suit land has preferential right to pre-empt the sale, in question, as alleged ?OPP 2- Whether the sale, in question, took place for a sum of Rs.1,75,487/- and it was the market value of the suit land ?OPP 3- Whether the plaintiff has no locus standi to file and maintain the present suit?OPD Regular Second Appeal No. 2222 of 1995 -4- 4- Whether the plaintiff has got no cause of action to file the present suit ?OPD 5- Whether the plaintiff has been estopped from filing the present suit against the defendant nos.2 to 4 by his own act and conduct ?OPD 6- Whether the suit is time barred ?OPD 7- Whether the suit is also bad for partial pre- emption ?OPD 8- Whether the suit has not been properly valued for purpose of Court fee and jurisdiction ?OPD 9- Whether the defendants have spent a sum of Rs.10000/- over the suit land in order to fertile the same, if so, its effect ?OPD 10- In case the suit of the plaintiff is decreed, whether the defendants shall be entitled to stamp and registration charges, if so, how much ?OPD 11- Relief.” It is pertinent to mention here that vide order dated 09.12.1993, the following additional issues were framed by the trial Court:- Regular Second Appeal No. 2222 of 1995 -5- “2-A Whether the defendants vendees are tenants in the suit land and as such the sale is not pre- emptable ?OPD 4-A Whether the suit land had already been partitioned, if so, to what effect ?OPD” 5. The parties led evidence, in support of their case. The trial Court after hearing the Counsel for the parties, and, on going through the evidence and record of the case, decreed the suit. 6. Feeling aggrieved, an appeal was preferred by the appellants/defendant nos. 2 to 4, which was dismissed, by the Court of District Judge, Karnal, vide its judgment and decree dated 19.09.1995. 7. Still feeling dis-satisfied, the instant Regular Second Appeal has been filed, by the appellants/defendant nos.2 to 4. 8. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. The Counsel for the appellants, submitted that the first Appellate Court mainly decided the appeal on the Regular Second Appeal No. 2222 of 1995 -6- ground, as to whether, according to amended Section 15 of the Punjab Pre-emption Act, 1913, a co-sharer had no right to pre-empt the sale. He further submitted that the first Appellate Court did not touch the other issues nor decided the same. He further submitted that in Shyam Sunder and others v. Ram Kumar and another, 2001(3) RCR (Civil) 754 (SC), a case decided by a Constitution Bench of the Apex Court, it was held that amended Section 15 of the Punjab Pre-emption Act, 1913 (as amended by the Haryana Amendment Act) 1995 shall not have retrospective effect. He further submitted that in view of the principle of law, laid down, in Shyam Sunder and others's case (supra), the appeal may be remanded back, to the first Appellate Court, for decision afresh, on merits. 10. On the other hand, the Counsel for respondent no.1, submitted that in the first Appellate Court, the only argument, which was raised by the Counsel for the appellants, was that the right of a co-sharer to pre-empt the sale, having been taken away by the amendment, the suit for pre-emption was not maintainable. He further submitted that the contention of the Counsel for the appellants, in that regard was rejected by the first Appellate Court. He further submitted that since no argument on other issues was raised by the Regular Second Appeal No. 2222 of 1995 -7- Counsel for the appellants, before the first Appellate Court, it was not required to pronounce the decision, on the same. He further submitted that the judgment and decree of the first Appellate Court, being legal and valid, were liable to be upheld. 11. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, it is a fit case, in which the judgment and decree, passed by the first Appellate Court, should be set aside and the matter be remanded back to it, for decision, on merits. In Shyam Sunder and others's case (supra) , the principle of law, laid down, by a Constitution Bench of the Apex Court, was to the effect, that Section 15 of the Punjab Pre-emption Act, 1913 (as amended by the Haryana Amendment Act) 1995, did not have retrospective effect but was only prospective in nature. It was further held that this amendment shall not affect the pending suits and appeals. In this view of the matter, the first Appellate Court, did not decide the remaining issues, as to for what amount, the sale took place, as to whether the suit was for partial pre-emption and whether any improvements were made by the appellants over the land, and if so, whether they were entitled to receive Regular Second Appeal No. 2222 of 1995 -8- compensation. The first Appellate Court, being a final Court of facts, was required to discuss the evidence and decide all the issues, involved in the case. The submission of the Counsel for the appellants, in this regard, carries substance and is accepted. 12. For the reasons, recorded above, the judgment and decree of the first Appellate Court, are set aside. The appeal is remanded back to the first Appellate Court for fresh decision, on merits, on the evidence already led, and after affording an opportunity to the Counsel for the parties to address arguments. Since the appeal is very old, the first Appellate Court, is directed to decide the same, on merits, within three months, from 14.10.2009. The parties are directed to appear in the first Appellate Court on 14.10.2009 at 10.00 AM positively for further proceedings. ( Sham Sunder ) September 23, 2009 Judge dinesh