RSA No.4582 of 2009 (O&M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** RSA No.4582 of 2009 (O&M) Decided on:25.05.2010 **** Roshan Lal and others . . . .Appellants Versus Sadhu and another . . . .Respondents **** CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: - Mr.Anil Kshetarpal, Advocate for the appellants. Mr.Ramesh Sharma, Advocate for the respondents. **** RAKESH KUMAR JAIN, J. (ORAL) Defendants No.2 to 4 are in second appeal against the judgment and decree of both the Courts below whereby suit filed by the plaintiff/pre-emptor has been decreed. In brief, the relevant facts of the case are that defendant No.1- Randhir Singh (Vendor) was the owner in possession of agricultural land measuring 19 kanals 10 marlas, being half share of the land measuring 39 kanals 0 marla, which was sold to defendants No.2 to 4/appellants (Vendees) for a consideration of Rs.1,95,487/- vide sale deed dated 8.11.2009, which was registered on 11.11.1991. Sadhu son of Kundan /Plaintiff/pre-emptor filed suit for possession by way of pre-emption on 2.1.1992 to pre-empt the sale deed dated RSA No.4582 of 2009 (O&M) - 2 - 8.11.1991 alleging that the plaintiff/pre-emptor being co-share with defendant No.1 has a superior right to pre-empt the suit land. The suit was contested only at the instance of defendants No.2 to 4 (vendees) who had alleged that the suit land has been purchased by them for a sum of Rs.1,95,487/- and have also spent a sum of Rs.10,000/- on its improvement. They also amended the written statement alleging the partition of the suit land. It was also claimed that they were tenants over the suit land of defendant No.1 till the time of its purchase. From the pleadings of the parties, following issues were framed on 02.09.1993: - “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 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 defendants No.2 to 4 by his own act and conduct? OPD 6. Whether the suit is time barred? OPD RSA No.4582 of 2009 (O&M) - 3 - 7. Whether the suit is also bad for partial pre-emption? OPD 8. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? OPD 9. Whether the defendants have spent a sum of Rs.10,000/- 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.” On 09.12.1993, following additional issues were also framed: - “2-A Wehther the defendants vendees are tenants on the suit land and the land is not pre-emptable? OPD 4-A Whether the suit land has already been partitioned, if so, to what effect? OPD” Both the parties led their respective oral as well as documentary evidence in respect of their case. The suit was decreed by learned trial Court by its judgment and decree dated 17.12.1993. The Plaintiff/pre-emptor, who had already deposited 1/5th of the amount of sale consideration RSA No.4582 of 2009 (O&M) - 4 - on 07.02.1992 deposited the balance sale consideration on 24.01.1994. Aggrieved against the judgment and decree of the trial Court, the present appellant/vendee preferred Civil Appeal No.7/9 of 1994 on 25.01.1994 which was dismissed on 19.9.1995 by Sh. N.K. Jain, District Judge, Karnal, holding that amendment of Section 15 of the Act, by which right of co-sharer has been abolished is not retrospective. Still aggrieved, the appellants came up in Regular Second Appeal No.2222 of 1995, which was allowed vide order dated 23.09.2009 and the matter was remanded back to the First Appellate Court for afresh decision on merits on the evidence already led but after affording an opportunity to the counsel for the parties to address arguments. After remand, the matter was placed before the District Judge, Karnal, where the appellants had filed an application under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure, 1908 (for short ‘CPC’) dated 9.11.2009, in which it was alleged that the plaintiff had lost his superior right of pre-emption being a co-sharer because the suit land had already been partitioned by the Assistant Collector IInd (exercising the powers of Assistant Collector Ist Grade), Asandh vide order dated 30.3.1994 in the application filed under Section 111 of the Punjab Land Revenue Act, 1887 on the basis of which a mutation No.1523 had also been sanctioned. This application was contested by the pre-emptor by filing a reply dated 11.11.2009 in which he had admitted that the land has been partitioned as sanad takseem was prepared on 30.03.1994 but it was alleged that since the trial Court had RSA No.4582 of 2009 (O&M) - 5 - pronounced its judgment on 17.12.1993, therefore, partition, if any, made after the trial was concluded and the judgment was pronounced would not help the appellant, in any manner. Both the application filed under Order 41 Rule 27 read with Section 151 of the CPC and the appeal, were decided separately but on the same date i.e. 17.11.2009. In the present appeal, notice of motion was issued and in the meantime, status quo regarding possession over the suit property, as it was obtaining on the date of notice of motion, was ordered to be maintained by the parties. Mr.Anil Kshetarpal, learned counsel appearing on behalf of the appellants has challenged the judgment and decree of both the Courts below by raising two substantial question of law, namely (i) in case the pre-emptor was not having sale consideration on the date when the property was sold to the appellants, the superior right of pre-emption would be deemed to have been waived? (ii) Whether a suit for possession on the basis of superior right of pre-emption being a co-sharer can be decreed when the plaintiff looses his status as a co-sharer during the pendency of the appeal which is continuation of the suit?? To substantiate his first argument, learned counsel for the appellant has drawn the attention of this Court to the statement of plaintiff, who admitted in his cross-examination that at the time of sale of suit land, he was only having Rs.50,000/-. It is submitted that if he did not have money for sale consideration of Rs. 1,95,487/- at the time of sale, he was not enjoying superior right and his right to claim pre-emption should be deemed to have been waived. In this RSA No.4582 of 2009 (O&M) - 6 - regard, learned counsel for the respondent has submitted that the right of pre-emption is to be seen not only at the time of sale but at the time of suit and also at the time of decree. Therefore, his readiness and willingness to purchase the suit property should be seen, not only at the stage of sale but at the stage of suit and at the stage of decree. He further submits that had a notice been given in terms of Section 19 of the Punjab Pre-emption Act, 1913 (for short ‘the Act’), he would have showed the money even at the time of sale and present litigation would not have ensued. In respect of second question, learned counsel for the appellants has submitted that admittedly the suit property has been partitioned on 30.03.1994, therefore, appeal being the continuation of suit disentitles the plaintiff from claiming the superior right. In this regard, he has relied upon a Division Bench judgment of this Court in the case of “Suresh Kumar Versus Chanchal Singh and another” 1995(3) PLR 113. In reply to this contention, learned counsel for the plaintiff/pre-emptor has relied upon a decision of the Supreme Court in the case of “Shyam Sunder and others Versus Ram Kumar and another” 2001 (8) Supreme Court Cases 24 to contend that the appellate Court is only to see the correctness of the judgment of the learned trial Court and is not to see the subsequent events with regard to the status of the pre-emptor as right of the parties was crystallized on the date of decree. I have heard both the learned counsel for the parties and perused the record with their assistance. So far as the first question is concerned, there is no dispute that that plaintiff has made statement in his cross- RSA No.4582 of 2009 (O&M) - 7 - examination that he was having Rs.50,000/- at the time when sale deed was executed by the vendor/defendant No.1 in favour of vendees/defendants No.2 to 4. The question is whether the pre- emptor had lost his right if he was not found prepared with the amount of total sale consideration or whether his right to claim superior right of pre-emption is defeated on the basis of waiver. To my mind, the right of pre-emption is a right of substitution. It is well settled that pre-emptor has to maintain his right not only at the stage of sale but also at the stage of suit and decree and in case the pre- emptor losses superior right of pre-emption at any of the stage, he cannot be granted decree. In this case, since notice under Section 19 of the Act was not given which provides that the vendee/co-sharer has to inform the prospective pre-emptor about the price, which he is getting for the land intended to be sold then vendee cannot take this plea that the pre-emptor was not ready with the cash at the time when the sale deed was executed because Section 19 and 20 of the Act when read in conjunction provides that notice may be given by the Vendor to the pre-emptor and if after receiving the notice the pre-emptor do not take any action then after the expiry of 3 months from the date of notice, his right of pre-emption gets extinguished. Therefore, in order to defeat the right of the pre-emptor, law has been enacted in such a fashion that before the property is sold, in order to avoid a litigation in the Court, a notice under Section 19 of the Act is required to be served by the Vendor to the other co-sharer disclosing his intentions about the sale of the property and if after receiving the notice the said prospective vendee does not take any action within a RSA No.4582 of 2009 (O&M) - 8 - period of three months, his right of pre-emption gets extinguished putting a clog on his right for ever. Therefore, notice under Section 19 of the Act is mandatory and if the notice has not been given, the vendee cannot take this plea that pre-emptor had no sufficient money to purchase the property at the time of sale. The reason is very obvious that nobody is having ready money at his home all the time for the purpose of purchasing the property. Had the notice been given, the pre-emptor would have arranged the money for the purpose of pre-empting the sale, therefore, I do not find any force in the first question raised by learned counsel for the appellants. Insofar as second question is concerned that in case where jointness of the property is effected by an order of the Revenue Court and the Pre-emptor looses his status as a co-sharer with the vendor during the pendency of the appeal, the judgment and decree already passed would be effected. The judgment relied upon by the learned counsel for the appellant in the case of “Suresh Kumar Versus Chanchal Singh and another” 1995(3) PLR 113, says that pre-emptor has to maintain his right at all three stages and even at the appellate stage but the aforesaid judgment would not apply to the facts of this case in view of the judgment of the Supreme Court in the case of Shyam Sunder Vs. Ram Kumar (Supra) in which, while discussing the similar situation, following observations have been made: - “It was argued by learned counsel for the appellant that an appeal being a continuation of the suit, the appellant Court is required to notice and consider the subsequent event namely, loss of RSA No.4582 of 2009 (O&M) - 9 - qualification by the pre-emptor during pendency of an appeal. In fact, the argument is that where a co-sharer loses the right to pre-empt during pendency of appeal the pre-emptor’s suit must fail. It is no doubt true that in certain context an appeal is a continuation of the suit and the appellate court is rehearing the suit, but such wide appellate power has not shown to be exercised to affect the vested right of a pre-emptor. It is not disputed that a claimant’s right to get the property in preference to the vendee is an inchoate one up to the date of adjudication of the suit but it becomes effective as soon as a decree is passed in his favour. Order 20 sub-rule (1) of Rule 14 CPC provides that where a Court decrees a claim to pre-empt in respect of a particular sale of property and a decree-holder has deposited that purchase money along with the costs of the suit in the Court, the vendee is required to deliver possession of the property to the decree-holder and title to the property stands transferred in favour of the claimant. In view of the said provision, on deposit of purchase money in the court by the claimant the right and title to the property vest in the pre-emptor and it becomes vested right of the pre-emptor. The right of pre- emption prior to the decree may be weak but after it becomes a vested right, it can only be taken away by a known method RSA No.4582 of 2009 (O&M) - 10 - of law. The loss of qualification of pre- emptor or vendee acquiring status above to pre-emptor during pendency of appeal cannot be allowed to influence the Court as a Court of appeal is mainly concerned with the correctness of the judgment rendered by the Court of first instance. As earlier noticed, an appellate court is entitled to take into consideration subsequent event taking place during pendency of appeal and a Court in an appropriate case permits amendment of a plaint or written statement as the case may be but such amendment is permitted in order to avoid multiplicity of proceedings and not where such amendment causes prejudice to the plaintiff’s vested right rendering him without remedy. It is thus only those events which have taken place or rights of the parties prior to adjudication of the pre-emption suit and which the trial Court was entitled to dispose of, can only be taken into consideration by the appellate Court. We find support of our view from the decision in Sakina Bibi V. Amiran wherein the High Court of Allahabad held that a Court of appeal was only required to see whether the trial Court had wrongly dismissed the claim of the pre-emptor and it is irrelevant that during the pendency of appeal land was sold in an execution proceeding in another suit. In a pre-emption case RSA No.4582 of 2009 (O&M) - 11 - where an appeal is filed against the decree of the court of first instance, the scope of appeal is confined to the question whether the decision of the trial court is correct or not. This being the legal position which held the field for over a century, any subsequent event taking place during pendency of appeal cannot be allowed to be taken into consideration by the appellate court, otherwise it may displace the case of a pre-emptor.” Now, as per the facts of this case, the decree was passed by the trial Court on 17.12.1993 and the decreetal amount was deposited on 24.1.1994 whereas partition order was passed on 30.3.1994. Therefore, Supreme Court in the case of Shyam Sunder and others Vs. Ram Kumar and another (Supra) says “In view of the said provision, on deposit of purchase of money in the court by the claimant the right and title to the property vest in the pre-emptor and it becomes vested right of the pre-emptor. The right of pre-emption prior to the decree may be weak but after it becomes a vested right, it can only be taken away by a known method of law. The loss of qualification of pre-emptor or vendee acquiring status above to pre- emptor during pendency of appeal cannot be allowed to influence the Court as a Court of appeal is mainly concerned with the correctness of the judgment rendered by the Court of first instance.” In view of the aforesaid observations, which are squarely covering the present case, I do not find any merit in the present appeal nor do I find any RSA No.4582 of 2009 (O&M) - 12 - substantial question of law involved therein and as such the same is hereby dismissed but without any order as to costs. (RAKESH KUMAR JAIN) 25.05.2010 JUDGE Vivek