RSA No.3337 of 2009(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3337 of 2009(O&M) Date of decision: 18.1.2010 Jai Kant and another ......Appellant(s) Versus Malkhan Singh & ors. ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Robin Dutt, Advocate for the appellants. Rakesh Kumar Garg, J.(Oral) CM No.10271-C of 2009 For the reasons mentioned in the application, delay of 8 days in refiling the present appeal is condoned. CM stands disposed of. RSA No.3337 of 2009 This is defendants' second appeal challenging the judgment and decree of the Lower Appellate Court whereby suit of the plaintiff- respondent for possession by way of pre-emption of the suit land has been decreed. The case of the plaintiff-respondent is that he was tenant over the suit land for the last 30 years. Earlier his father, namely, Telu Ram was the tenant over the suit property on payment of Batai under its owner but later on after his death, the tenancy rights over the suit land were inherited by him being son and now he was in actual and physical possession over the suit land as a tenant. It was further averred that the total land measuring 791 Kanals 1 marla was sold through the Court decree dated 19.9.1995 for a consideration of Rs.45,000/- but the plaintiff was a tenant RSA No.3337 of 2009(O&M) 2 over the suit land measuring 19 kanals 8 marlas, and the proportionate amount for the aforesaid land comes to Rs.1140/-. This land was sold to the defendant-appellants without giving him any notice. He had a superior preferential right to purchase the suit land against the defendant-appellants who are the strangers. It was further averred that despite request, the defendant-appellants failed to recognize his right of pre-emption over the suit land and refused to transfer the land to him. Hence, this suit. Upon notice, the defendant-appellants appeared and filed written statement alleging that the land in question was sold to them through the Court decree for specific performance and the sale deed was got registered through the Court after a long litigation. In the sale deed executed by the Court, possession of the land was not given to the defendant-appellants and the plaintiff-respondent was well aware of such long litigation and never came to assert his title and therefore, suit was liable to be dismissed. On appreciation of the evidence and hearing learned counsel for the parties, trial Court dismissed the suit of the plaintiff-respondent. While dismissing the suit, the trial Court, though, held that the plaintiff had established to be the tenant over the land in dispute at the time of sale on 20.9.1995 and at the time of filing of the suit and was in possession even on the date of passing of the judgment in capacity as a tenant but the plaintiff-respondent cannot seek partial pre-emption under the law as the suit qua one of the defendant-appellants and his LRs was dismissed under Order 9 Rule 2 CPC. Feeling aggrieved, the plaintiff-respondent filed an appeal which was allowed by the Lower Appellate Court vide impugned judgment and decree dated 6.12.2008. While accepting the appeal, the Lower Appellate Court affirmed the findings of the trial Court with regard to the RSA No.3337 of 2009(O&M) 3 fact that the plaintiff-respondent was the tenant and was in possession over the suit land at the time of sale and at the time of filing of the suit. However, with regard to the remaining findings of the trial Court on the question of “whether the case in hand was of partial pre-emption being abated for not bringing on record the LRs of respondent No.1, the Lower Appellate Court held that after the amendment in the CPC by this Court, it was the duty of the legal heirs of defendant No.1 to bring on record the LRs of the deceased and not of the plaintiff-respondent. Another argument raised on behalf of the appellants to the effect that since the order passed under Order 9 Rule 2 CPC was not challenged by the plaintiff-respondent, the same cannot be challenged now in this appeal, was also rejected. Still not satisfied, the defendants have filed the instant appeal challenging the aforesaid judgment and decree of the Lower Appellate Court. Learned counsel for the appellants has vehemently argued that the suit qua defendant No.1 i.e predecessor-in-interest of the proforma respondent in this appeal was dismissed under Order 9 Rule 2 CPC and the plaintiff-respondent neither preferred any appeal/revision nor filed a fresh suit and thus, was precluded from challenging the aforesaid order at the time of decision of the appeal and the Lower Appellate Court erred at law because once the suit was dismissed under Order 9 Rule 2 CPC qua the share of proforma respondent, the suit was liable to be dismissed in toto and not against the proforma respondent only and therefore, the judgment and decree of the Lower Appellate Court is liable to be set aside. On the basis of the aforesaid argument, learned counsel for the appellant has submitted that the following substantial questions of law arise in this appeal: RSA No.3337 of 2009(O&M) 4 “(i) Whether, the partial pre-emption is permittable in the eyes of law? (ii) Whether, once the suit dismissed under Order 9 Rule 2 qua the share of proforma respondents, the suit would not be dismissed in toto? (iii) Whether, the order passed under Order 9 Rule 2 is an interlocutory order?” I have heard learned counsel for the appellants. However, I find no merit in the arguments raised by him. From the perusal of the record of this appeal, it may be noticed that the trial Court was informed regarding the death of defendant No.1 on 11.3.1999 when his counsel moved an application before the Court. Thereafter, the aforesaid counsel who appeared on behalf of defendant No.1 filed power of attorney on behalf of LRs of defendant No.1 and the application for bringing on record the LRs of defendant No.1 was allowed on 5.3.2003 without any objection from the counsel for the plaintiff- respondent. Thereafter, the trial Court unnecessarily issued notice to the respondents and dismissed the suit on 1.10.2005 qua the LRs of defendant No.1 under Order 9 Rule 2 CPC. In fact, there was no necessity for the trial Court either to issue notice to the aforesaid LRs of defendant No.1 or to dismiss the suit on 1.10.2005 qua them as they were already being represented by the same counsel who was representing defendant No.1 and at the most, if their counsel had not appeared they could have been proceeded against ex parte. However, in view of the Order 22 Rule 2A CPC, as amended by this Court, it was the duty of the legal heirs of defendant No.1 to bring on record themselves and the plaintiff-respondent was not duty bound to bring them on record. Thus, the findings of the trial Court about the partial pre-emption of the suit being abated against RSA No.3337 of 2009(O&M) 5 defendant No.1 were not sustainable and were rightly reversed. This Court also does not agree with the contention of the learned counsel for the appellant that an interlocutory order cannot be challenged with the main appeal. In Achal Mishra v. Rama Shanker & others 2005 (2) RCR (Civil) 598, the Hon'ble Supreme Court has held that an interlocutory order can be challenged in an appeal from a final decree or order if no appeal or revision was filed against that interlocutory order. No other point was argued. No question of law, much less substantial question of law, as argued by the learned counsel for the appellants, arises in this appeal. Thus, I find no merit in this appeal. Dismissed. January 18, 2010 (RAKESH KUMAR GARG) ps JUDGE