Punjab-Haryana High Court
Ram Narain And Others vs Birham Dutt And Others on 17 December, 2013
Author: Paramjeet Singh
Bench: Paramjeet Singh
RSA No. 1797 of 1987 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
R.S.A. No. 1797 of 1987
Reserved on : 27.11.2013
Date of Decision: December 17, 2013
Ram Narain and others
... Appellants
Versus
Birham Dutt and others
... Respondents
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers 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?
Present: Ms. Alka Sarin, Advocate,
for the appellants.
None for the respondents.
Paramjeet Singh, J.
This regular second appeal arises from judgment and decree dated 05.09.1985 passed by the learned Sub Judge Ist Class, Bahadurgarh as well as from the judgment and decree dated 28.04.1987 passed by learned Additional District Judge (III), Rohtak.
The detailed facts are already recapitualated in the judgments of the Courts below and are not required to be reproduced. However, the brief facts relevant for disposal of this second appeal are that plaintiffs Surender Kumar (hereinafter referred to as the `pre-emptor') and Birham Dutt Kumar Virender 2014.01.09 10:47 I attest to the accuracy and integrity of this document RSA No. 1797 of 1987 2 (hereinafter referred to as the `rival pre-emptor') filed two separate civil suits for possession by way of pre-emption, inter-alia, alleging that defendant no.1 - Bishnu Dutt, who was a co-sharer in the land detailed in para no.1 of the plaint, sold his share in favour of appellants-vendees- defendants for a sum of Rs.49,500/- vide sale deed dated 10.01.1981. Plaintiff - Surender Kumar sought pre-emption of the sale deed alleging that he being the real son of the vendor has got a preferential right against the vendee, who was the stranger; whereas in the second suit, Birham Dutt, rival pre-emptor sought the pre-emption of the same land with regard to the same sale deed alleging that he has a right to pre-empt the sale being a co- sharer. It is pertinent to mention that in the suit filed by Birham Dutt, Surender Kumar son of Bishnu Dutt was also impleaded as defendant and he contested the right of Birham Dutt to pre-empt the sale deed alleging that he has superior right being son against the rival pre-emptor as Birham Dutt being brother of vendor Bishnu Dutt. On notice, defendants appeared. Birham Dutt has also contested the claim of the plaintiff - Surender Kumar in the other suit alleging that he was major at the time of filing suit but he had filed a suit through his mother. Amendment dated 11.08.1981 allowed by Court is not binding upon him. However he admitted that Surender Kumar is the son of vendor. Plea of limitation, collusion between Surender Kumar-plaintiff and the vendees was also raised. In replication filed by each of the plaintiffs to the written statement filed by each of the pre-emptors, denied the averments and affirmed the averments made in their respective plaints. On the pleadings of the parties, the trial Court framed the following issues:-
Kumar Virender 2014.01.09 10:47 I attest to the accuracy and integrity of this document RSA No. 1797 of 1987 3
"1. Whether plaintiff Surender Kumar has got superior right of pre-emption? OPP
2. Whether suit is time barred? OPD
3. Whether suit on behalf of the minor has been validly filed. If so, to what effect? OPP
4. What is the effect of amendment allowed by the Court dated 11.8.81 in absence of rival pre-emptor? OPD
5. Whether suit has been filed in collusion with the vendee? OPD
6. Whether Braham Dutt rival pre-emptor has a superior right of pre-emption? OP rival pre-emptor.
7. Whether sale consideration was fixed and actually paid for Rs.49,500/-? OPD (vendee)
8. If issue No.7 is not proved then what was the market value of the land at the time of sale? OPParties
9. Whether suit filed by Surender Kumar is bad for partial pre-
emption? OPD
10. Relief."
Thereafter, learned trial Court afforded opportunities to lead evidence to the parties and recorded finding on various issues. Both the suits were decided by a common judgment and decree. The trial Court granted the following relief:-
"16. As a result of my findings on the above issues, the suit of the plaintiff and the rival pre-emptors succeeds and the same are decreed for possession by way of pre-emption in respect of the suit land on payment of Rs.56,200/- (Rs.49,500/- as sale consideration and Rs.6700/- on account of stamps and registration charges) against the vendees but Surender Kumar plaintiff being the son of the vendor has got a superior right as against the rival pre-emptor, therefore, he is given first preference to pre-empt the sale in question on payment of Rs.56,200/-. He will pay or deposit the aforesaid amount upto 30.9.85 after adjusting the 1/5th pre-emption amount already Kumar Virender 2014.01.09 10:47 I attest to the accuracy and integrity of this document RSA No. 1797 of 1987 4 deposited by him, failing which his suit shall stand dismissed and in that case Braham Dutt rival pre-emptor will be entitled to pre-empt the sale in question on payment of Rs.56,200/- less 1/5th pre-emption money to be paid or deposited on or before 31.10.85, failing which his suit shall also stand dismissed. The parties are left to bear their own costs in either eventualities. Decree sheet be prepared."
Against that vendee did not prefer any appeal. Birham Dutt preferred two appeals, but withdrew the same. However, the first appellate Court extended the period for depositing the pre-emption money by 28.05.1987, failing which the suit filed by Birham Dutt was ordered to stand dismissed. Meaning thereby that the learned first appellate Court maintained the judgment of the trial Court, however, extended the period for depositing the pre-emption money by Birham Dutt. Feeling aggrieved against the judgment and decree of the first appellate Court, appellants- vendees have preferred this regular second appeal.
I have heard learned counsel for the appellants and perused the record.
This appeal was admitted on 19.05.1987. At the time of admission, no substantial question of law was framed. However, during the pendency of the present appeal, following substantial questions of law have been placed on record:-
"i) Whether the Lower Appellate Court had the jurisdiction to extend the time for deposit of pre-emption money when the plaintiff-respondent withdrawn his appeal and there was no modification or alteration of the decree of the trial Court especially in view of the provisions of Order 20 Rule 14 CPC?
ii) Whether the Lower Appellate Court could affirm a decree for Kumar Virender 2014.01.09 10:47 I attest to the accuracy and integrity of this document RSA No. 1797 of 1987 5 pre-emption based on consanguinity in view of the Supreme Court judgment in Atam Parkash's case AIR 1986 SC 859?
iii) Whether the Lower Appellate Court could extend time in a decree based on consanguinity having dismissed the suit filed by rival pre-emptor, Surender Kumar, vide judgment dated 16.9.1986?
iv) Whether the judgment and decree of the Courts below are perverse and contrary to the law laid down by the Hon'ble Supreme Court?"
Learned counsel for the appellants vehemently contended that during the pendency of the appeals preferred by Birham Dutt, Hon'ble Supreme Court in the case of Atam Prakash versus State of Haryana and others, AIR 1986 SC 859 has struck down as unconstitutional the right of pre-emption based on the Rule of Consanguinity holding it to be a relic of the feudal past. Appeal is a continuation of suit. Learned counsel further contended that on 26.04.1986, the learned Lower Appellate Court sent for a report from the trial Court to ascertain if Birham Dutt, respondent herein was a co-sharer or not and after receipt of the report on 16.09.1986, the Lower Appellate Court held that report dated 01.08.1986 given by the trial Court was without any reasoning and was given without affording an opportunity of hearing to the vendees. Vide the same order, appeal No. 111/13/1985 was allowed and the suit of Surender Kumar was dismissed. However, in appeal No. 110/13/1985 a fresh report was called from the trial Court to ascertain if Birham Dutt was a co-sharer in the property. Against dismissal order, Surender Kumar preferred a regular second appeal No. 3520 of 1986 which was dismissed by this Court on 09.12.1986. Thereafter, learned lower appellate Court allowed the prayer of the Birham plaintiff, Kumar Virender 2014.01.09 10:47 I attest to the accuracy and integrity of this document RSA No. 1797 of 1987 6 respondent in the present case / rival pre-emptor to withdraw appeal and dismissed the same as withdrawn. However, it extended the time for depositing the pre-emption money. Withdrawal of the appeal was opposed by the appellants herein, but the learned lower appellate Court maintained the judgment of the trial Court. Learned counsel for the appellants further vehemently contended that once the right of the son of the vendor is no more in existence and his RSA stand dismissed, the rival pre-emptor has also no right to pre-empt. Even if for the sake of arguments, it is treated that Birham Dutt respondent herein had any right, that right has extinguished in view of Atam Prakash's case (supra). It is further contended that once the appeal is dismissed as withdrawn then there is no question of extending the time for depositing the pre-emption money. It is further contended that it would means that no appeal had been filed before the lower appellate Court. Otherwise also, in view of specific provisions i.e. Order 20 Rule 14 CPC, time cannot be extended. It is a mandatory provision. Once the rights of Surender Kumar in the other suit have been decided and his suit has been dismissed in spite of the fact that he had already deposited the pre-emption money vide receipt No. 28.09.1985 then judgment of trial Court decreeing the suit of Birham Dutt could not be maintained as he might be having any other right, but in any case his right was not superior to the rights of Surender Kumar, son of the vendor. To substantiate his contentions, learned counsel for the appellants made reference to judgments of Hon'ble Supreme Court in Atam Prakash vs. State of Haryana and others, AIR 1986 Supreme Court 859, Sulleh Singh and others vs. Sohan Lal and another, AIR 1975 Supreme Court 1957, Shanti Devi (Smt.) and another vs. Kumar Virender 2014.01.09 10:47 I attest to the accuracy and integrity of this document RSA No. 1797 of 1987 7 Hukum Chand, (1996) 5 Supreme Court Cases 768, Prem Singh and others vs. Joginder Singh and others (1997) 10 Supreme Court Cases 195 and Mahant Braham Dass Singh Pannu vs. Om Parkash Chaudhary (1996) 7 Supreme Court Cases 97.
In view of the arguments, following substantial questions of law arise in the present regular second appeal:-
a) Whether the Lower Appellate Court could affirm a decree for pre-emption based on consanguinity in view of the Supreme Court judgment in Atam Parkash's case AIR 1986 SC 859?
b) Whether the Lower Appellate Court could extend time in a decree based on consanguinity having dismissed the suit filed by rival pre-emptor, Surender Kumar, vide judgment dated 16.9.1986?
Both the substantial questions are being taken up together for consideration.
In Atma Prakash's case (supra) decided by Hon'ble Supreme Court on 27.021986 it has been held as under:-
"13. We are thus unable to find any justification for the classification contained in section 15 of the Punjab Preemption Act of the kinsfolk entitled to pre-emption. The right of pre-emption based on consanguinity is a relic of the feudal . It is totally inconsistent with the Constitutional Scheme. It is inconsistent with modern ideas. The reasons which justified its recognition quarter of a century ago, namely, the preservation of the integrity of rural society, the unity of family life and the agnatic theory of succession are today irrelevant. The list of kinsfolk mentioned as entitled to pre-emption is intrinsically defective and self-contradictory. There is, therefore, no reasonable classification and clauses 'First', 'Secondly', and ' Thirdly' of s.l5(1)(a), 'First', 'Secondly' Kumar Virender 2014.01.09 10:47 I attest to the accuracy and integrity of this document RSA No. 1797 of 1987 8 and 'Thirdly', of s.15(1)(b), Clauses 'First', 'Secondly' and 'thirdly' of s.15(1)(c) and the whole of section 15(2) are, therefore, declared ultravires the Constitution.
14. We are told that in some cases suits are pending in various courts and, where decrees have been passed, appeals are pending in appellate courts. Such suits and appeals will now be disposed of in accordance with the declaration granted by us. We are told that there are a few cases where suits have been decreed and the decrees have become final, no appeals having been filed against those decrees. The decrees will be binding inter-partes and the declaration granted by us will be of no avail to the parties thereto."
The right of pre-emption based on consanguinity has been declared to be ultra vires the Constitution by Hon'ble Supreme Court. As such, in the instant case since the appeal was pending adjudication when the judgment in Atma Prakash (supra) was pronounced, the rights of Birham Dutt had also extinguished being based on consanguinity. As such, he has no right to claim any property on the basis of right of pre-emption.
Hon'ble Supreme Court in Sulleh Singh's case (supra) has also held as under:-
"15. The contention of the appellants that the lower appellate court was wrong in extending the time for payment is correct because the failure of the plaintiffs-respondents to deposit the amount in terms of the-Trial Court's decree would result in pre- emptor's' suit standing dismissed by reason of their default in not depositing the pre-emption price. The contention of the appellants that the High Court was wrong in not setting aside the order of extension of time passed by the lower appellate court is correct. It is only if the plaintiffs-respondents had paid the decretal amount within the time granted by the Trial Court Kumar Virender or if the plaintiffs-respondents had obtained another order 2014.01.09 10:47 I attest to the accuracy and integrity of this document RSA No. 1797 of 1987 9 from the lower appellate Court granting any order of stay that the lower appellate court might have considered the passing of appropriate order in favour of pre-emptors. The High Court should have allowed the appellant-s' appeal and not made any distinction in dismissing plaintiff-respondent Nathi's suit and allowing plaintiff-respondent Sohan Lal any extension of time to make the payment. Further, it appears that the plaintiff respondent Sohan Lal did not pay the amount."
Admittedly, in the present case, the appeal was pending before the learned lower appellate Court and the same was dismissed as withdrawn. By that time judgment of Atam Prakash (supra) had also come but still the appeal was allowed to be withdrawn. Be that as it may, once the lower appellate Court had dismissed the appeal as withdrawn, there was no occasion for the learned lower appellate Court to extend the time for depositing pre-emption money. In view of this, judgment and decree of the learned lower appellate Court is not sustainable.
In view of above, both substantial questions are answered as above and present regular second appeal is allowed. Judgments and decree of both the Courts below are set aside, the suit of the plaintiff Birham Dutt stand dismissed in view of authority of law laid down in Atam Prakash's case (supra).
No order as to costs.
December 17, 2013 [ Paramjeet Singh ]
vkd Judge
Kumar Virender
2014.01.09 10:47
I attest to the accuracy and
integrity of this document