RSA No.3819 of 1987 1 IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3819 of 1987 Date of decision: 16.02.2011 Jagdish Chander and others …Appellants Versus Prem Lata and another …Respondents. CORAM : HON’BLE MR. JUSTICE JITENDRA CHAUHAN Present: Shri Gurjit Singh Bawa, Advocate, for the appellants. Shri Roopam Bansal, Advocate, for the respondents. Jitendra Chauhan, J 1. This regular second appeal No.3819 of 1987 has been preferred against the judgment and decree dated 24.08.1987, whereby the appeal filed by Jagdish Chander and others defendants was partly accepted vide the decree under challenge. The suit of Vijay Kumar, Vinod Kumar and Ashok Kumar plaintiffs was dismissed and the suit filed by Prem Lata and Santosh Kumari plaintiffs was decreed to the extent of 2/5th share in 28 kanals 3 marlas for pre emption subject to deposit of proportionate sale price and other expenses, on or before 24.09.1987, failing which the suit of Prem Lata and Santosh Kumari plaintiffs was to be dismissed. The cross objections filed by Santosh Kumari were also disposed of accordingly. 2. The trial court had decreed the suit of the plaintiffs Vijay Kumar, Vinod Kumar, Ashok Kumar, Prem Lata and Santosh Kumari in toto for possession through pre emption in respect of the suit land measuring 28 RSA No.3819 of 1987 2 kanals 3 marlas as detailed and described in the head note of the plaint. Consequently, the first appeal was preferred by the present appellants against the judgment and decree dated 04.04.1986. 3. The brief facts, giving rise to the present dispute, are as follows:- One Kattu Ram had three sons namely Bodh Ram alias Budh Ram, Uttam Chand and Fateh Chand. Bodh Raj alias Budh Ram had three sons namely Lal Chand, Motan Dass and Vishan Dass, who are the vendors in the present suit. Uttam Chand had two sons namely Chhotu Ram and Mool Chand, who are also Vendors. Fateh Chand had three sons namely Lakhmi Chand and Bishan Dass who are also Vendors in the present suit. Kanhya Ram deceased had further five legal heirs namely Prem Lata widow, Santosh Kumari daughter, Vijay Kumar son, Vinod Kumar son and Ashok Kumar son, all plaintiffs before the trial court. It is admitted fact that Lal Chand, Motan Dass, Vishan Dass sons of Bodh Raj alias Budh Ram; Chhotu Ram and Mool Chand sons of Uttam Chand; Lakhmi Chand and Bishan Dass sons of Fateh Chand sold their shares measuring 28 kanals 3 marlas being 7/8th share of land measuring 32 kanals 3 marlas vide registered sale deed dated16.07.1982 ( Ex.P.2 and Ex.D.1) for a sum of Rs.27000/- without issuance of prior notice to the plaintiffs, heirs of Kanhya Ram deceased, who are co sharers in the land. Vijay Kumar, Vinod Kumar, Ashok Kumar sons, Prem Lata widow, Santosh Kumari daughter of Shri Kanhya Ram deceased filed Civil suit No.379 C of 21.7.1983, on 18.7.1983 pleading that they have got the superior right of pre emption RSA No.3819 of 1987 3 against the vendees Jagdish Chander and Daya Ram defendants 1 and 2, sons of Ram Chand defendant no.3. It is pleaded that the plaintiffs were and are still cosharers in the land; the vendees defendants no.1 and 2 are absolute strangers and they are not related to the vendors or with the suit land in any manner and that the defendants no.1 and 2 had no concern or connection whatsoever with the suit land before or at the time of the sale in question. The plaintiffs claim pre emption of the suit land by way of filing of this civil suit. 4. The defendants contested the suit on the ground that infact this land was sold to Shri Ram Chand defendant no.3 father of defendants no.1 and 2, who is real owner of the land and the possession of the land was already with him as gair marusi tenant on 1/3rd batai basis, for a sum of Rs.27000/-. So, the defendants submitted that the sale of the land made to a tenant is not pre emptible. 5. From the pleadings of the parties, the following issues were framed: 1. Whether the plaintiffs have a superior right of pre emption as against the defendants? OPP 2. Whether the sale price was fixed in good faith and was actually paid to the vendor?OPP 3. In case the issue no.2 is not proved,what was the market value at the time of the sale of the suit land ? OPP 4. Whether the defendants are entitled to stamps and registration expenses? OPD RSA No.3819 of 1987 4 5. Whether the plaintiffs have no cause of action?OPD 6. Whether the defendants were the tenants on payment of 1/3rd share of batai? If so its effect? OPD 7. Relief. 6. The learned trial court decided issues No.1, 3, 5, 6 and 7 in favour of the plaintiffs and decided issues no.2 and 4 in favour of defendants. The learned trial court decreed the suit of the plaintiffs in toto. 7. Against this impugned judgment and decree dated 4.4.1986, the defendants preferred the first appeal, which was partly accepted by the learned first Appellate Court, Sirsa vide judgment and decree dated 24.8.1987 as stated in para no.1 of this judgment. Prem Lata and others plaintiffs also preferred cross objections challenging the findings of the learned trial court on issues no.2 and 4, which were also disposed of vide the same judgment. 8. This regular second appeal no.3819 of 1987 which was admitted on 27th May, 1988 has been preferred by Jagdish Chander and Daya Ram vendors and Ram Chand their father impugning the judgment and decree of the learned Ist Appellate Court dated 24.08.1987 against Prem Lata and Santosh Kumari. Vijay Kumar, Vinod Kumar and Ashok Kumar other plaintiffs have not come up in the appeal by challenging the verdict of Ist appellate Court dismissing their suit. The appellants have also not made them Proforma respondents. So, the judgment and decree qua Vijay Kumar, Vinod Kumar, and Ashok Kumar becomes final. The learned Ist appellate Court affirmed the findings of the learned trial court on issues no.2, 4, 5, and 7. However, the learned Appellate Court partly reversed the findings of the learned trial court on issue no.1. RSA No.3819 of 1987 5 9. Learned counsel for the appellants vendors submits that Ram Chand was tenant at will in the land in question and he purchased this land in the name of his sons Jagdish Chander and Daya Ram who were ostensible owners. Learned counsel for the appellants further submits that the learned Appellate Court has legally erred in partly decreeing the suit of the plaintiffs to the extent of 2/5th share of 28 kanals 3 marlas. 10. On the other hand, the learned counsel for the respondents Prem Lata and Santosh Kumari submits that the findings recorded by the learned Appellate Court are correct. 11. I have heard the learned counsel for the parties and have gone through the records with their able assistance. 12. The very short law point has been raised for determination in this case is as to “In view of the Punjab Pre-emptuion Act, 1995 (Haryana Act 10 of 1995), whether the co-sharer’s right to pre-empt survives and whether the amendment has retrospective effect ?” 13. The judgment of the learned lower Appellate Court cannot be sustained and the suit of the plaintiff has to fail in view of the provisions of the Punjab Pre-emption (Haryana Amendment) Act, 1955, i.e. Haryana Act No.10 of 1995, vide which the right of the co-sharers to pre-empt a sale of the right to be a preferential vendee, as in the present case, has been taken away. 14. Though the provisions of the aforementioned Act came into effect on July 7, 1995, the question whether the provisions of this Act will have retrospective effect have been answered in the affirmative by Hon’ble the Supreme Court in Karan Singh and others Vs. Bhagwan Singh and others, 1996(2) RRR 105 (SC); Ramji Lal Vs. Ghisa Ram, 1996(2) RRR 456 and Mansu Vs. Shadi Ram, 1996(3) RRC (Civil) 438. RSA No.3819 of 1987 6 15. Accordingly, once the statute i.e., Haryana Act of 1995 bars the right of pre-emption which is sought to be enforced by the plaintiffs and such statute having been held to be retrospective in operation, the claim of the plaintiffs has no basis on which they can assert their right. As such, the appeal is accepted, the judgments and decrees of the learned Courts below are set aside. Resultantly, the suit of the plaintiffs stands dismissed. There is no order as to costs. 16. Perusal of the trial court record reveals that Smt Prem Lata one of the plaintiffs has deposited a sum of Rs.5400/- in the State Bank of India at Sirsa on 18th August, 1983, with the prior permission of Sub Judge I class, Sirsa before filing the pre emption suit as 1/5th of the pre emption money (jare panjam) as condition precedent for filing the suit. Since, the suit of the plaintiffs has been dismissed, she will be entitled to withdraw the amount. 16.02.2011 atulsethi ( JINTENDRA CHAUHAN ) JUDGE Note : Whether to be referred to reporter : Yes / No. RSA No.3819 of 1987 7 RSA No.3819 of 1987 8 Section 15 of the Punjab Pre emption Act (Old Act) prior to 1995 reads as under:- 15. Person in whom right of pre-emption vests in respect of sales of agricultural land and village immovable property-(1) The right of pre-emption in respect of agricultural land and village immovable property shall vest- Xx xx xx xx xx xx xx Xx xx xx xx xx xx (b) Where the sale is of a share out of joint land or property and is not made by all the cosharers jointly,- Xx xx xx xx xx xx Secondly, in the brothers or brother’s sons of the vendor or venders; Xx xx xx xx xx xx xx Fourthly, in the other co-sharers; Fifthly, in the tenants who hold under tenancy of the vendor or venders the land or property sold or a part thereof” The impugned judgment and decree of the learned First Appellate Court partly decreeing the suit of Prem Lata and Santosh Kumari, plaintiffs, will amount to partial pre-emption. Partial pre-emption is not permissible in law. This partly decreeing the suit on payment of proportioned sale price would have resulted in partial pre-emption. In Bal Ram Vs. Smt. Sarbati , 2010(3) RCR (Civil) 561, this Court while relying upon a judgment of the Hon’ble Supreme Court in Jagdish and others Vs. Nathi Mal Kejriwal and others 1987 Punjab Law Journal 14 : 1987 Recent Revenue Reports 65, held that partial pre-emption is not permissible. The learned first Appellate Court after scanning the entire material on record, partly decreed the suit of plaintiffs Prem Lata and Santosh Kumari to the extent of 2/5th share, whereas the suit of co-plaintiffs namely Vijay Kumar, RSA No.3819 of 1987 9 Vinod Kumar and Ashok Kumar was dismissed who have not preferred any appeal in this Court against their dismissal of the suit. No cross objection has been filed by the respondents challenging the findings of the learned Appellate Court below partly dismissing the suit of co-plaintiffs. So, the judgment qua them became final. Jamabandi Ex.P1 for the year 1979-80 shows Smt Prem Lata and Santosh Kumari plaintiffs to be the cosharers in land along with Vijay Kumar, Vinod Kumar and Ashok Kumar, co-plaintiffs, comprising of Rect.No.61, Khasra nos. 6, 14, 15, 16/1 abd 17/1, which is subject matter of sale deed in question Ex.P2/Ex.D.1. In this jamabandi Ram Chand defendant no.3 the father of defendants 1 and 2 Jagdish Chander and Daya Ram vendees is shown to be the tenant/gair marusi. In Jagdish and others Vs. Nathi Mal Kejriwal and others, AIR 1987 Supreme Court 68(1), it was held as under:- “The expression ‘other co-shares’ in clause ‘Fourthly’ of S.15(1)(b) refers to only those co-sharers who do not fall under clause ‘First’ or ‘Secondly’ or Thirdly’ of S.15(1)(b). Consequently, where the co-sharers claiming right of pre- emption fell either under clause ‘First’ or under clause ‘Secondly’ of S.15(1)(b), they being clearly outside the scope of clause ‘Fourthly’, suit by them for pre-emption is not maintainable.” Therefore, the co-plaintiffs, namely, Vijay Kumar, Vinod Kumar and Ashok Kumar, were not entitled to claim the superior right of pre-emption as co-sharers, as has been rightly held by the learned Appellate Court. RSA No.3819 of 1987 10 Keeping in view the settled position of law in Bal Ram’s case (supra), it is held that decree for partial pre emption cannot be granted. The judgment and decree dated 24.8.1987 partly decreeing the suit of the plaintiffs Prem Lata and Santosh Kumari is set aside. Resultantly, this regular second appeal is allowed and the suit of the plaintiffs is dismissed in toto.