IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A.No.3265 of 1986 Date of Decision: 30.8.2011 Gurcharan Singh. ....... Appellant through Shri O.P.Sharma, Advocate. Versus Harbans Singh (dead) through L.Rs. and others. ...... Respondent no.3 through Shri Amit Jain, Advocate. None for other respondents. CORAM: HON'BLE MR.JUSTICE VIJENDER SINGH MALIK .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... VIJENDER SINGH MALIK,J. Appellant-Gurcharan Singh had been the rival pre-emptor in respect of the land sold vide sale deed dated 18.6.1980 by Mahesh Chand, Smt. Lila Devi and Smt.Bimla Devi in favour of defendant- respondent nos. 1 to 3 for a consideration of Rs.32000/-, the other pre- emptor being Bagga Singh, respondent no.4. While Bagga Singh claimed the right of pre-emption being a co-sharer in the joint khewat, R.S.A.No.3265 of 1986 -2- .... appellant-Gurcharan Singh claimed the said right on the plea of tenancy. Apart from making aforesaid claims for superior right of pre- emption, they further claimed that the sale was effected for a lesser amount and some fictitious amount was added just to defeat the right of pre-emption. The suits brought by appellant-Gurcharan Singh and respondent no.4 were resisted by the vendees as well as by the rival pre-emptors. They were consolidated vide order dated 2.11.1982 and the proceedings thereafter continued in the suit brought by respondent no.4-Bagga Singh. On the pleadings of the parties, the following consolidated issues were framed by learned trial court:- 1. Whether the plaintiff has superior right of pre- emption?OPP 2. Whether the rival pre-emptor has superior right of pre-emption?OPR 3. Whether the sale price of Rs.32000/- was fixed in good faith and actually paid?OPD 4. If issue No.3 is not proved, then what is the actual market price?OPParties 5. Whether the stamp and registration charges has been incurred by the defendants?OPD R.S.A.No.3265 of 1986 -3- .... 6. Whether the defendants are in cultivating possession of the suit land as tenant in khewat No.8 and co-sharer in other khewats Nos. 9, 12 and 19?OPD 7. Relief. After taking the evidence of the parties, learned trial court, vide judgment and decree dated 6.12.1985, dismissed the suit of appellant-Gurcharan Singh because the vendees were co-sharers and the right of a tenant was inferior to that of a co-sharer under section 15 (b) of the Punjab Pre-emption Act,1913 ( for short `the Act'). The right of respondent no.4- Bagga Singh to pre-empt the sale was found to cover the land measuring 10-2/3 marlas comprised in khewat no.8, khatnoi no. 18 and 19 against defendant-respondents no. 2 and 3, Shingara Singh and Ranjit Singh and his suit to that extent was decreed. An appeal was preferred against the said judgment and decree by appellant-Gurcharan Singh and learned first appellate court, vide judgment and decree dated 14.8.1987, dismissed the same. Feeling aggrieved, appellant-Gurcharan Singh has come up before this Court in regular second appeal. I have heard Shri O.P.Sharma, learned counsel for the appellant and Shri Amit Jain, learned counsel for respondent no.3- Ranjit Singh. I have also gone through the record of the case. R.S.A.No.3265 of 1986 -4- .... It may be noticed here that during the pendency of this appeal, the provisions of section 15 of the Act have been amended. Under the amended provisions, the right of a co-sharer to pre-emption has been withdrawn. The right of pre-emption that survives in respect of sale of a share is in favour of a tenant and for this reason, appellant-Gurcharan Singh claiming himself to be tenant over 34 kanals 16 marlas out of the sold land, has sought a decree of pre- emption in respect of this land. Therefore, the substantial question that is to be decided in this appeal is, “whether the amended provisions of section 15 of the Act are retrospective in operation or they are prospective in operation?” If the amended provisions do not operate retrospectively, then the superior right of pre-emption has to be seen as on the date of decree passed by the court of first instance, i.e. 6.12.1985 and not thereafter. On that date, the unamended provisions were there and the right of pre-emption of a tenant was inferior to that of a co-sharer and the vendees being co-sharers in the land sold, appellant-Gurcharan Singh could not succeed in his claim. This question stands decided by a Constitution Bench of Hon'ble Supreme Court in Shyam Sunder and another Versus Ram Kumar and another, 2001(3) R.C.R.(Civil) 754. The question to be R.S.A.No.3265 of 1986 -5- .... answered by the Hon'ble Apex Court was worded as under:- “What is the effect of substituted Section 15 introduced by the Haryana Amendment Act,1995 (hereinafter referred to as the Amending Act 1995) in the parent Act i.e. The Punjab Pre-emption Act (hereinafter referred to as the parent Act) as applicable to the State of Haryana whereby the right of a co-sharer to pre-empt a sale has been taken away during the pendency of an appeal filed against a judgment of the High Court affirming the decree passed by the trial Court in a pre-emption suit?” After taking into account various decisions, the question has been answered in the following terms:- “The result of the aforesaid discussion is 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.” In view of the aforesaid law laid down by Hon'ble Supreme Court, the amendment made in section 15 of the Act being prospective in operation, it does not change the rights of the parties to R.S.A.No.3265 of 1986 -6- .... the litigation on the date of adjudication of the pre-emption suit. The appellate court is not required to take into account or give effect to substituted section 15. Learned counsel for the appellant has, however, cited a decision of Hon'ble Supreme Court reported as Mansu Versus Shadi Ram, 1996(3) R.C.R.(Civil) 438 to support the claim of the appellant, but, in my view, in the light of the judgment of the Constitution Bench in Shyam Sunder's case (supra), that decision does not lay down a good law and, therefore, cannot be followed. On the basis of the above discussion, the question of law is decided against the appellant and consequently, the appeal is found to be without any merit and is dismissed. August 30,2011 ( VIJENDER SINGH MALIK) “SCM” JUDGE