Punjab-Haryana High Court
Jagtar Singh vs Jhabbar Singh And Ors. on 17 August, 2007
Equivalent citations: (2007)4PLR539
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
JUDGMENT Satish Kumar Mittal, J.
1. This judgment shall dispose of Regular Second Appeals No. 1470 and 1557 of 1983, filed by plaintiff Jagtar Singh against the judgments and decree, passed by both the courts below, whereby his two separate suits seeking pre-emption of two different sale deeds on the ground of co-share-ship, have been dismissed.
2. R.S.A. No. 1470 of 1983 is arising from civil suit No. 420 of 1981 pertaining to land measuring 12 Bighas representing 240/819th share the land measuring 40 Bighas 19 Bishwas, as detailed in para 1 of the plaint, which was owned by one Jit Singh, who sold the same for a consideration of Rs. 46,500/- to the defendants vide registered sale deed dated 7.4.1980.
3. R.S.A. No. 1557 of 1983 is arising from civil suit No. 421 of 1981 pertaining to land measuring 10 Bighas 18 Biswas representing 218/19th share of the land measuring 40 Bighas 19 Biswas, as detailed in para 1 of the plaint, which was owned by Jit Singh and his wife Piar Kaur, who sold the same for a consideration for Rs. 42,500/- to the defendants vide registered sale deed dated 24.4.1980.
4. Both the suits were filed by the plaintiff for pre-empting the aforesaid two sale deeds under Section 15 of the Punjab Pre-emption Act, 1913 (as applicable to the State of Haryana) on the ground that he was having superior right to pre-empt those sale deeds as co-sharer in the joint khewat. The defendants (vendees) contested both the suits and denied that the plaintiff had a superior right to pre-empt the sales. It was also pleaded that even if it was proved that the plaintiff was a co-sharer in the joint khata, out of which land in dispute had been sold, even then he has no right to preempt the sales, as the joint khata had since been partitioned between the co-sharers by the competent revenue authority. The defendants, by placing on record the order of partition dated 31.7.1982 (Ex. DX) passed by the competent revenue authority, pleaded that before passing the decree, the plaintiff had lost his superior right of pre-emption, as after the order of partition, he ceased to be a co-sharer in the joint khata. That being so, his suits were liable to be dismissed.
5. The trial court, while relying upon a Divisional Bench decision of this Court in Smt. Har Devi v. Ram Jas and Ors. 1974 P.L.J. 345, have held that by passing the order of partition dated 31.7.1982 (Ex. DX) by the Assistant Collector, IInd Grade, the joint status of the parties in the land in dispute severed and thereafter, plaintiff no more remained co-sharer in the suit land at the time of passing of the decree i.e. on 1.12.1982. Hence, in view of the Full Bench decision of this Court in Ramji Lal and Anr. v. The State of Punjab and Ors. (1966) 68 P.L.R. 345 (F.B.), both the suits were dismissed. Feeling aggrieved against the judgment and decree passed by the trial Court, the plaintiff filed appeals before the District Judge, which were also dismissed. While dismissing the appeals, the first appellate court observed as under:
9. In view of the principle of law laid down by our own High Court in the above cited authority it is apparent that the joint relationship between the parties had come to an end as soon as the order dated 31.7.1982 had been passed by the Assistant Collector IInd Grade Pehowa. In the circumstances it is apparent that on the date of the decree of the learned trial court the plaintiff had ceased to be a co-sharer in the land in dispute. It is the settled law that a plaintiff pre-emptor must have a right of pre-emption on the date of the sale, on the date of the suit as also on the date of the decree of the trial court. Since at the time when the learned trial court had passed the decree in the present case, the plaintiff had ceased to be a co-sharer in the land in dispute so he had no right of pre-emption. Accordingly I affirm the findings of the learned trial Court on issue No. 1 and on the additional issue and decide these issues against the plaintiff and in favour of the vendee-defendants.
6. It is mentioned here that vide order dated 31.7.1982, passed by Assistant Collector, II Grade, the objections filed by the plaintiff to 'Naksha Be' were dismissed and consequently, the 'Naksha Be' partitioning the joint land between different co-sharers was approved and case was adjourned to 30.8.1982, after the expiry of the period of limitation of one month for filing the appeal against the said order. Against the said order, plaintiff Jagtar Singh filed appeal before the Collector and vide order dated 12.10.1982 (Ex. DY), the Collector dismissed the appeal. Against that order, plaintiff Jagtar Singh filed a revision before the Commissioner, Ambala Division, Ambala, who vide order dated 19.10.1982 (Ex. PX) stayed the operation of the order dated 12.10.1982 till 16.10.1982. Thereafter, the stay order granted by the Commissioner was not extended and in the meantime, both the suits of the plaintiff were dismissed on 1.12.1982.
7. Against the judgments and decree, passed by both the courts below, dismissing suit of the plaintiff, these Regular Second Appeals were filed, which were admitted on 18.10.1983.
8. During the pendency of these appeals, the Punjab Pre-emption Act, 1913 was amended by the Haryana Amendment Act 10 of 1995. By the said amendment, the right of pre-emption on the ground of co-shareship was taken away with prospective effect. After coming into force the Haryana Amendment Act 10 of 1995, a controversy arose as to whether-the amended provision of Section 15 of the Pre-emption Act are retrospective, in nature, which may affect the rights of the parties not even on the date of adjudication of the suit, but will also effect their rights on the date of passing of the decree by the appellate Court. This controversy has been settled down by the decision of a Constitutional Bench of the Supreme Court in Shyam Sunder and Ors. v. Ram Kumar and Anr. , while holding that the aforesaid amendment is prospective in nature and it "does not affect the right of the parties which accrued to them on the date of the suit or on the date of passing of the decree by the Court of first instance." It has been further observed that "We are also of the view that the present appeals are unaffected by change in law in so far it related to determination of the substantive rights of the parties and the same are required to be decided in the light of the law of pre-emption as it existed on the date of passing of the decree."
9. Keeping in view the above said settled legal position, I have heard the arguments of learned Counsel for the parties on the merits of the case.
10. Learned Counsel for the appellant-plaintiff submitted that both the courts below have erred in law while dismissing the suit of the plaintiff only on the ground that on the date of passing of the decree by the trial court, the appellant-plaintiff had lost his superior right of pre-emption, as the joint land had already been partitioned by the revenue Court. Learned Counsel submitted that this conclusion was drawn on the assumption that with the approval of "Naksha Be' by the revenue authority and dismissal of the appeal against the same by the Collector, the joint status of the parties came to an end and thereafter, the plaintiff could not maintain his status of co-sharer on the date of passing of the decree by the first court. Learned Counsel submitted that for the said conclusion, both the courts have relied upon a Division Bench decision of this Court in Smt. Har Devi's case (supra). Learned Counsel for the appellant-plaintiff argued that the aforesaid Division Bench decision of the this Court was considered and explained by another Division Bench of this Court in Pritam Singh v. Jaskaur Singh , wherein it was held that the term "completion of partition proceedings" appearing in Section 121 of the Punjab Land Revenue Act, 1887 says that when partition is completed, the Revenue Officer shall cause an instrument of partition to be prepared, and the date on which the partition is to take effect be recorded therein. It has been held that partition is not effective in the absence of instrument of partition. No severance of status of co-sharers takes place in the absence of instrument of partition and delivery of possession of the allotted portion of joint land to parties. Therefore, it cannot be said that after approval and confirmation of 'Naksha Be', joint status of the parties comes to an end.
11. Learned Counsel for the appellant-plaintiff submitted that since in the instant case, on the date of passing of the decree by the trial Court, only 'Naksha Be' was approved, but no instrument of partition was issued and separate possession was delivered to the parties, therefore, the courts below were wrong while dismissing the suit on the ground that on the date of decree, plaintiff ceased to be co-sharer in the joint land.
12. On the other hand, learned Counsel for the respondents-defendants (vendees) relied upon the following observations of the Division Bench decision of this Court in Smt. Har Devi's case (supra):
On the 17th June, 1968, order Exhibit D.12 was passed which records that the period of limitation for filing an appeal against the order dated 21st May, 1968 had expired and, therefore, instrument of partition is prepared and will take effect from rabi 1968. It is thus obvious that by June, 1968, the joint status of the parties had been severed and, therefore, the plaintiff-preemptor ceased to be a co-sharer before the trial Court's decree which was passed on 31st July, 1968. The trial Court, in view of the these facts, could not proceed to decree the pre-emption suit, particularly in view of the decision of the Full Bench of this Court in Ramji Lal and Anr. v. The State of Punjab and Ors. (1966) 68 P.L.R. 345, wherein it has been held that a pre-emptor has to maintain his preferential right not only at the date of the suit or during the course of the litigation but also at the date of the trial Court's decree. In the instant case the relationship as co-sharer's had come to an end before the decree was passed and, therefore, the suit for pre-emption could not be decreed. This is the view that the learned Single Judge has taken. The Courts below which dealt with the suit took the view that the relationship as co-sharers had not ceased by the time the trial Court passed the decree.
Mr. Jain, learned Counsel for the appellant, contends that in view of Section 118 of Land Revenue Act no further proceedings could be taken in pursuance of the order of 21st May, 1968, because that order had been appealed against. According to him, the instrument of partition (Exhibit D.12) could not be prepared. It is not necessary for us to go into this matter because we are of the opinion that the order dated 21st May, 1968, put an end to the joint relationship. That order was appealed against and that appeal failed; or, to put it more accurately, was not pressed. Therefore, the order dated 21st May, 1968, remained alive and whatever has happened in pursuance of it cannot be just wiped out. Faced with this situation, Mr. Jain took recourse to the doctrine of merger and according to him the order of 21st May, 1968, would merge with the order of the appellate Court dismissing the appeal. It is in this situation, that the learned Counsel contends that the date when the appellate order was passed being beyond the date of the trial Court's decree, there was no severance of status and the trial Court was justified in decreeing the suit for pre-emption. We are unable to agree with this contention. The doctrine of merger is of a very limited application and does not apply to all proceedings. Reference in this connection may be made to the observations of the Supreme Court in State of Madras v. Madurai Mills Co. Ltd. .
While relying upon the aforesaid observations, learned Counsel for the respondents submitted that on passing the order of partition, the joint status of the parties in the joint land comes to an end. He further submitted that in the instant case also, after confirmation of 'Naksha Be', the appeal filed by the plaintiff against the said order was dismissed before passing the decree by the trial court. Therefore, on the date of passing of the decree, the plaintiff had already lost his right of pre-emption. Learned Counsel also relied upon a Single Bench decision of this Court in Lala Ram v. The Financial Commissioner Haryana and Ors. 1992 P.L.J. 45, wherein it has been observed as under:
A perusal of the scheme of partition contained in Chapter IX would manifest that after the mode of partition is determined. The partition proceedings come to an end, and in so far as the preparation of instrument of partition is concerned it is only an executory act. An appeal has been specifically provided against an order dealt with by Section 118 i.e., the mode of partition. In case such an appeal is filed within 15 days from the date of determination of the mode of partition and the institution of such an appeal has been certified to the Revenue Officer, it amount to an automatic stay of proceedings pending disposal of the appeal. If the orders specifically dealt with in the Act against which an appeal is provided or which otherwise determine the rights of the parties, like an order refusing partition, order determining title of the parties, are not appealed against and the partition proceedings are permitted to go on till finalization of the mode of partition then the consequential orders which only implement what has been determined earlier cannot be the subject matter of appeals. Mr. Verma, however, on the strength of decision rendered by Himachal Pradesh High Court reported as Khem Dutt v. Palika 1982 P.L.J. 391 and decision rendered by Financial Commissioner, Punjab, reported as Kartar Singh v. Kapur Singh 1971 P.L.J. 677, has endeavoured to persuade me to take a different view. A perusal of the aforesaid judgments, however, would show that the point under consideration was not at all involved in the aforesaid two cases. It was only held in the said cases that preparation of the instrument of partition is not a mere formality but it is a necessary document to make a partition decree effective and that it is the date given in the instrument of partition from which the partition is to take effect and also that the possession even if delivered to the parties before the partition was made effective would not extinguish the status of the parties as a cosharer. It is, no doubt, true that the instrument of partition has necessarily to be prepared but the fact remains that the said instrument only records what has already been determined. It is a formal document that has to be prepared only to recognize the fact of partition. The very fact that it has to be necessarily drawn does not mean that it is appealable. A perusal of various sections that have been referred to above would manifest that the instrument of partition is a step in execution of partition which has already taken place. Once all the necessary steps for affecting partition have been taken then a party to proceedings cannot raise objections in drawing the instrument of partition. It is just like a decree which is to follow the judgment it is only those orders which effect the rights of the parties that are appealable and the document, viz., the instrument of partition which is only a step towards execution of the order of partition shall not be appealable.
In view of the aforesaid decision, learned Counsel submitted that the joint status of the parties in the joint land comes to an end after passing of the order of partition, and preparation of instrument of partition is a step in execution of the partition which has already taken place. Therefore, learned Counsel submitted that both the courts below have committed now illegality while passing the impugned judgments and decree.
13. Learned Counsel for the respondents-defendants (vendees) raised another argument on the basis of a Division Bench decision of this Court in Suresh Kumar v. Chanchal Singh a Anr. 1996 (2) All India Land Laws Reporter 303. He submitted that right of a co-sharer to pre-empt, the sale of the joint land must not only be in existence on the date of sale, on the date of institution of the suit, on the date of decree by the first court, but also during the appellate proceedings.
14. In reply to the aforesaid contentions, learned Counsel for the appellant-plaintiff submitted that the view taken by the Division Bench of this Court to the effect that a pre-emptor has superior right of pre-emption till the passing of the decree by the final court of appeal; and that a vendee can defeat the right of pre-emption by a plaintiff by getting the partition of the khewat completed even after the judgment and decree of the trial court and until the decision of the final court of appeal, is directly contrary to a number of Full Bench decisions of this Court and also decision of the Supreme Court. In this regard, learned Counsel for the appellant referred to the Full Bench decision of the Lahore High Court in Thakur Madho Singh and Anr. v. Lt. James R.R. Skinner and Anr. (1941) 43 P.L.R. 581 (F.B.) : A.I.R. 1941 Lahore 433, another Full Bench decision of this Court in Ramji Lal's and Anr. v. The State of Punjab and Ors. (1966) 68 P.L.R. 345, a decision of the Supreme Court in Bhagwan Das (dead) by his legal representatives and Ors. v. Chet Ram and another decision of the Supreme Court in Shyam Sunder's case (supra). In all these judgments, it is held that it is a settled rule in pre-emption law that a pre-emptor must maintain his qualification to pre-empt sale up to the date of decree of the first court only, whether that decree is one dismissing the suit or decreeing it, and his loss of qualification, whether by his own act or by an act beyond his control, after the date of that decree does not affect his claim in the suit. Learned Counsel submitted that in some cases, it was held that in a case of pre-emption, the appellate court is competent to take into account the subsequent change in the legislation and while determining the right of plaintiff to pre-empt the land on the date of passing the decree by the appellate court, the court was held to be competent to take into consideration the subsequent events. In this regard, learned Counsel made reference to two decisions of the Supreme Court in Karan Singh v. Bhagwan Singh and Ramjilal v. Ghisa Ram . Learned Counsel submitted that these category of cases have been over-ruled by the Supreme Court in Shyam Sunder's case (supra) and the Full Bench decision of this Court in Ramji Lal's case (supra) was approved while holding that in a suit for pre-emption, the claimant must prove that his right to pre-empt subsisted till the date of the decree of the first court and that loss of the right after the date of the decree by an act beyond his control did not affect his claim in the suit. Therefore, learned Counsel submitted that on the date of passing of the decree by the trial Court, the superior right of the plaintiff to pre-empt the sale was subsisting, as by that time, the suit land was not finally partitioned and he was a co-sharer in the joint land on the date of passing of the decree i.e. 1.12.1982. Therefore, the impugned judgments and decree, passed by the courts below, are liable to be set aside and suits of the plaintiff deserve to be decreed.
15. After hearing the arguments of learned Counsel for the parties, I am of the opinion that the following two substantial questions of law are arising for consideration in these appeals:
(1) Whether under the Punjab Land Revenue Act, 1887, the joint status of the parties comes to an end with the passing of the order of partition, even in absence of issuance of instrument of partition; and whether with the passing of the partition order, the plaintiff, who claimed the right of pre-emption being co-sharer in the joint land, looses his superior right of pre-emption?
(2) Whether a pre-emptor is required to maintain his superior right of pre-emption, not only till the date of decree of the first court alone, but also till the passing of decree by the final court of appeal; and whether the vendee is entitled to defeat the right of pre-emption of the plaintiff on the ground of being a co-sharer, by getting partition of the khewat completed, even after the judgment and decree of the trial court i.e. until the decision of the final court of appeal on the theory that the courts of appeal are entitled to take into account even the facts and events which have come into existence after the decree of the trial court?
16. Sections 110 to 126 contained in Chapter IX of the Punjab Land Revenue Act, 1887 deal with partition. Section 110 is with regard to the effect of partitions of estates and tenancies on the joint liability for revenue and rent for purposes of the Land Revenue Act. Section 111 deals with the rights of a joint owner of land or a joint tenant or a tenancy in which the right of occupancy subsists, to apply to a revenue officer for partition of his share in the land or tenancy. Section 112 is with regard to restriction and limitation on partition. Section 113 contains provisions with regard to issuance of notice to interested parties and the rights of such parties to raise an objection to partition proceedings. Section 114 is with regard to addition of parties to the partition application. Section 115 vests power in the revenue officer to disallow partition if in his opinion there is good and sufficient cause to do so. Section 116 deals with procedure on admission of partition applications. Sections 117 and 118 deal with disposal of questions as to title in property to be divided and the questions as to decide mode of making partition. If an objection is raised regarding the question of title, the Revenue Officer is at liberty to decide such question himself or direct the party to get it decided from the civil court and stop the partition proceedings until such question of title is decided. If the Revenue Officer comes to conclusion that there is no question of title involved, he will ask the, Patwari to prepare a map of the land to be partitioned and share of the persons asking partition. This map is generally known as 'Naksha Alf which contains the details of possession of the co-sharer asking for partition, excess or less area cultivated by that co-sharer. On receipt of 'Naksha Alf', the Revenue Officer shall ask the parties to file objections to it. After disposing of those objections, he will frame the mode of partition. Any of the parties to the partition proceedings can challenge the mode of partition decided by the Revenue Officer in appeal under Section 188(2). When the mode of partition becomes final, the Revenue Officer shall ask the Patwari to get the share separated of the joint owners. Then the Patwari prepares the map according to the mode of partition which is known as 'Naksha Be'. Any aggrieved party against 'Naksha Be' can raise, objection to it on the ground that it was not prepared according to mode of partition. After hearing the parties, the 'Naksha Be' is approved. A person aggrieved against approved. 'Naksha Be" can file the appeal within 30 days. After the expiry of the period of appeal or in case the appeal filed and dismissed, the 'Naksha Be1 becomes final. The said final order is communicated to the Patwari, Kanungo and the parties. After the expiry of period of limitation, instrument of partition is to be drawn on the stamp paper by the Revenue Officer. Section 121 provides for preparation of instrument of partition after the partition has been completed. In the said instrument of partition, it is to be specified as to from which crops, the partition will be effective.
17. There are two views. According to one view, the partition proceedings come to an end, when the 'Naksha Be' becomes final. By the said order, the severance of the joint status takes place. According to another view, the partition proceedings are completed when the instrument of partition is drawn, and no severance of status of co-sharer, takes place in absence of instrument of partition. Though the Division Bench of this Court in Smt. Har Devi's case (supra) has observed that an order of partition puts an end to joint ownership between the co-sharers and the preparation of instrument of partition is not necessary, but in that case, vide order of partition dated 21.5.1968, the demarcation was effected on the spot. The partition was effected according to the plan and the case was adjourned for obtaining 'Naksha jeem' for 4.6.1968. In that situation, it was ordered that when the said order became final, it put an end to the joint ownership of the co-sharers and since the said order was passed before passing decree by the trial court, it was held that by the time of decree, the plaintiff had lost his superior right of pre-emption. The said Division Bench decision of this Court was considered and explained by another Division Bench decision of this Court in Pritam Singh's case (supra) by making the following observations:
7. The first appellate Court did not correctly understand the ratio of the judgment in Hardevi's case (supra) and read the observations in the judgment in isolation of the subsequent observations made therein. It is in error in holding that the plaintiff ceased to be a co-sharer once 'Naksha Be' has been prepared and after the preparation of 'Naksha Be', the partition was complete. The conclusion arrived at by it cannot be sustained;
8. The term "completion of partition proceedings" appearing in Section 121 of the Act says that when partition is, completed, the Revenue Officer shall cause an instrument of partition to be prepared, and the date on which the partition is to take effect be recorded therein. The plain reading of Section 121 provides that instrument of partition is to be prepared after the partition had been completed which means that once the distribution of revenue, rent etc. had been determined under Section 120 of the said Act, partition is complete. The joint status of the parties comes to end once partition order has been passed. Partition is not effective in the absence of instrument of partition. No severance of status of co-sharers takes place in the absence of instrument of partition and delivery of possession of the allotted portion of joint land to parties.
It was, thus, held that the partition proceedings do not complete without drawing instrument of partition and the joint status of the parties come to an end only when instrument of partition is drawn.
18. The aforesaid authoritative decisions of the Division Bench are binding on this Court, therefore, contrary Singly Bench decision of this Court in Lala Ram's case (supra), without taking note of the above said Division Bench judgments cannot be allowed. In view of aforesaid legal position, both the courts below have erred in law while holding that on the date of passing of the decree by the trial court, the plaintiff had lost his superior right of pre-emption as by that time, 'Naksha Be' was confirmed and appeal filed against the same was dismissed. Undisputedly, in this case also, no instrument of partition was drawn. Therefore, in absence of instrument of partition, it cannot be said that the joint status of the parties came to an end. Thus, the first question is decided in favour of the appellant-plaintiff.
19. In support of the second question, learned Counsel for the respondents-defendants (vendees) relied upon a Division Bench decision of this Court in Suresh Kumar's case (supra). In that case, this Court, while taking into consideration certain observations made in Santokh Singh v. Lajja Ram and Anr. 1986 P.L.J. 946 to the effect that the subsequent events cannot be lost sight by the Court while determining the rights of the parties i.e., if the land was partitioned during the pendency of the appeal, the co-sharer lost his right of pre-emption, which were doubted in Lakhwinder Singh and Ors. v. Balwinder Singh and Ors. 1987 P.L.J. 505, wherein it was observed that pre-emptor has to retain his right of pre-emption on the date of sale, institution of the suit and the decree of the trial Court and not beyond that, referred the matter to a Division Bench for adjudication. While deciding the said reference, the Division Bench of this Court observed as under:
...the requirement of maintaining superior right of pre-emption does not come to an end at the time of passing of the decree by the trial Court. No statutory provision of any law or any other principle has been pointed out by which any support can be drawn for the contention that the rights of the parties stand putrefied on the date of passing the decree by the trial Court itself. Nothing has been brought to our notice to assume such a situation nor has any embargo been pointed out on the powers of the Appellate Authority against taking into account the facts, circumstances or events coming into being at the time of passing the decree.
In view of the observations made above, we affirm the observations made in Santokh Singh v. Lajja Ram and Anr. 1986 P.L.J. 496 : 1986 (2) All India Land Laws Reporter 566 that the subsequent events cannot be lost sight of and a partition at any stage during the pendency of the proceedings for pre-emption would result in losing the right of pre-emption.
We would have remanded the case for a fresh decision to the Hon'ble Single Bench, but we find no need to do so since it is not disputed at the bar that the partition did take place during the pendency of the appeal and the findings of the District Judge to this effect runs as under:
Mutation had been sanctioned by the Assistant Collector, IInd Grade on 21.4.1990 as evident from copy Ex. C2 of the extract of the mutation register.
The partition stood recognised by the revenue authorities. Consequently, the pre-emptor lost the right of pre-emption. Thus, the suit for pre-emption cannot be decreed on the ground of the respondent being co-sharer as he did not have right of pre-emption on the relevant date i.e. on the date of passing the decree for pre-emption.
In view of the observations made above, the question referred to is answered in the affirmative i.e. the Appellate Authority can take note of subsequent events, facts and any change in law during the pendency of the appeal before passing the decree.
In my opinion, the aforesaid view taken by the Division Bench of this Court is directly contrary to the Full Bench decision of the Lahore High Court in Thakur Madho Singh's case (supra), another Full Bench decision of this Court in Ramji Lai's case (supra), a judgment of the Supreme Court in Bhagwan Das's case (supra), approving both the aforesaid Full Bench decisions, and another decision of the Supreme Court in Shyam Sunder's case (supra), again approving both the aforesaid Full Bench decisions, and another decision of the Supreme Court in Shyam Sunder's case (supra), again approving both the aforesaid Full Bench decisions and the decision of the Supreme Court in Bhagwan Das's case (supra). In the Division Bench decision of this Court in Suresh Kumar's case (supra), the Full Bench decision of this Court in Ramji Lal's case (supra) and judgment of the Supreme Court in Bhagwan Das's case (supra) were not referred and considered. Therefore, in my view, the said decision is per incuriam, as ratio of this case is in conflict with the ratio of the earlier Bull Bench decision of this Court. In this regard, reference can be made to a decision of the Supreme Court in Punjab Land Development and Reclamation Corporation Ltd. Chandigarh v. Presiding Officer, Labour Court, Chandigarh and Ors. .
20. In Thakur Madho Singh's case (supra), Full Bench of the Lahore High Court observed as under:
A vendee can defeat the right of the pre-emptor by improving his status at any time before the passing of the decree in the pre-emption suit by the trial Court, as the rights of the parties are adjudicated upon by the trial Court alone and the function of the Court of appeal is only to see what was the decree which the Court of first instance should have passed.
In Ramji Lal's case (supra), the Full Bench of this Court has held that a pre-emptor is required to maintain qualification of his preferential right till the passing of decree by the trial court and loss of qualification to pre-empt after the decree and during the pendency of the appeal is of no consequence. In this regard, it has been held as under:
Held, that it is a settled rule in pre-emption law that a pre-emptor must maintain his qualification to pre-empt, to the date of the decree of the first court only, whether that decree is one dismissing the suit or decreeing it and his loss of qualification, whether by his own act or by an act beyond this control, after the date of that decree does not affect the fate of his claim in the suit. A pre-emptor in whose favour a pre-emption decree has been given in the first court need not retain his superior right of pre-emption till the hearing of the appeal by the vendee.
In Bhagwan Das's case (supra), the Supreme Court has approved the Full Bench decision of the Lahore High Court in Thakur Madho Singh's case (supra) and the aforesaid Full Bench decision of this Court in Ramji Lal's case (supra) and it has been held that a pre-emptor is required to maintain his qualification of preferential right till the passing of the decree by the trial court.
21. Recently, in Shyam Sunder's case (supra), the Supreme Court considered the effects of subsequent events taken place during the pendency of the appeal arising from a suit for pre-emption filed on the ground of cosharership. It has been held as under:
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 the subsequent event taking place during pendency of appeal and a court in an appropriate case permits amendment of a plot 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 plaintiffs 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.
The Supreme Court while noticing the observations of the Privy Council in Hans Nath v. Ragho Prasad Singh A.I.R. 1932 Privy Council 57 has observed as under:
a pre-emptor to maintain a suit for pre-emption is required to prove his right of pre-emption on three important dates. The claimant must possess right of pre-emption on the date of sale. The claimant must possess the same right on the date when the suit is instituted and that right should continue to exist on the date of adjudication of the suit. However, it is a matter of no consequence whether the trial court decrees or dismisses the suit. It has also been the consistent view of the Privy Council and various High Courts that a pre-emptor must possess qualification to pre-empt a sale on the date of decree of the court of first instance only for maintainability of the suit although it is immaterial that the pre-emptor loses the right of pre-emption after the adjudication of the suit either by his own act or the vendee improving his status equal to the pre-emptor during tendency of appeal filed against the decree of the trial court.
In Shyam Sunder's case (supra), a contention was raised by counsel for the vendee that the right of pre-emption stood extinguished by the issuance of the notifications and the appeal being a continuation of the suit the High Court was not justified in affirming the decree of the trial Court. In this regard, the Supreme Court observed as under:
This precise question was considered by the Full Bench of the High Court of Punjab in Ramji Lal v. State of Punjab. Question I was formulated on the basis of a similar contention urged before the Full Bench which held that in a suit for pre-emption the claimant must prove that his right to pre-empt subsisted till the date of the decree of the first court and that loss of the right after the date of the decree by an act beyond his control did not affect his claim in the suit. Accordingly, the notification under Section 8(2) extinguishing the right of pre-emption in the property issued during the pendency of the appeal against the decree of the trial court did not disentitle the plaintiffs to maintain their claim of pre-emption already exercised and decreed. This is he law which is holding the field since 1965. The view taken by the Full Bench of the Punjab High Court is not shown to be erroneous.
22. In Jagdish Singh and Ors. v. Dalip Singh and Ors. (1982) 84 P.L.R. 677, this Court has held that it is well established by now that a pre-emptor has to show that he had a right of pre-emption on the date of the sale, as also on the date of suit, which right should continue upto date of decree of the trial Court and not beyond that date. In that case, the order of partition passed during the pendency of the appeal has been discarded while observing as under:
Assuming for the sake of arguments, that there was partition made by the aforesaid order which was binding on the minor plaintiff, yet I am of the view that the right of the plaintiff to seek pre-emption is not taken away by such order of partition. It is well established by now that a pre emptor has to show that he had a right of pre emption on the date of sale, as also on the date of suit, which right should continue upto the date of decree of the trial court and not beyond that date. The decree of the trial court is dated 3.3.1981. Therefore, if the plaintiff had a right of pre-emption till 3.3.1981, the partition made subsequent thereto, will not affect his right. Admittedly, accordingly to the vendees' own case, the partition was made on 8.12.1981. Accordingly, it is established that the pre-emptor had a right of preemption on the date of sale, on the date of suit and also upto the date of decree of the trial court. Therefore, the order of partition obtained by the vendor on 8.12.1981, is of no consequence and would not stand in the way of the pre-emptor to succeed.
23. In view of the authoritative decisions of the Full Bench of this Court and the Supreme Court, the decision rendered by the Division Bench is not binding on this Court, as the said judgment is per incurium. Thus, in my view, the suits of the plaintiff cannot be dismissed on the ground that during the pendency of appeal, the suit land stood partitioned, therefore, it should be deemed that the plaintiff has lost the right of pre-emption on the date of passing of the decree by the appellate court.
24. Consequently, both the appeals are allowed and the suits filed by the appellant-plaintiff for possession by way of pre-emption regarding the lands mentioned in para 1 of the plaints, are decreed.
25. No order as to costs.