Punjab-Haryana High Court
Mangat Ram (Since Deceased) ... vs Ram Parkash & Others on 21 August, 2013
Author: Surinder Gupta
Bench: Surinder Gupta
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Date of decision: 21.08.2013
1. RSA No. 3179 of 1987
Mangat Ram (since deceased) represented by his LRs and others
.. Appellants
Vs.
Ram Parkash & others
.. Respondents
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2. RSA No. 3180 of 1987
Mangat Ram (since deceased) represented by his LRs and others
.. Appellants
Vs.
Ram Parkash & others
.. Respondents
****
CORAM : HON'BLE MR. JUSTICE SURINDER GUPTA
Present : Mr. Santosh Sharma, Advocate for
Mr. Akshay Bhan, Advocate
for the appellants.
None for the respondents.
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1. Whether Reporters of 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?
SURINDER GUPTA, J.
This order shall dispose of two RSA Nos. 3179 & 3180 of 1987 as common questions of law and facts are involved in these cases. RSA No. 3179 of 1987
2. Plaintiffs Ram Parkash, Ram Sarup, Banarsi & Om Parkash sons of Smt. Surji (now respondent in these appeals) filed a civil suit No. 164 of 1982 for possession of the suit land claiming their right of pre- emption under Section 15(1) of the Punjab Pre-emption Act (later referred Satyawan 2013.08.22 14:11 "I attested to the accuracy and integrity of this document"
High Court Chandigarh RSA No. 3179 of 1987 2 to as 'the Act) (as applicable to the State of Haryana) in their capacity as co- sharers having superior right of pre-emption. The land was sold by defendant No.1 Smt. Chalti Devi to Mangat Ram & other defendants (now appellants in this regular second appeal) vide sale deed dated 29.05.1981 for `47,000/-. It has been alleged by the plaintiffs that the sale was in fact for `37,000/- and inflated sale consideration was mentioned in the sale deed.
3. The vendor Chalti Devi was given up by the plaintiffs and the vendees contested the suit with the plea that the plaintiffs have no locus standi to file and maintain the suit as the right of pre-emption, if any, would be governed by the provisions of Section 15(2) of the Act. The other technical objections to the suit were also taken and the vendees pleaded that besides purchasing the suit land for `47,000/-, they have also spent `7,000/- on the registration of the sale deed and `4050/- on the improvement of the land.
4. The pleadings of the parties led to the framing of the following issues by the trial Court:-
(i) Whether the plaintiff has got superior right of pre-
emption?OPP
(ii) Whether the property in dispute was inherited by Smt. Chalti vendor from her husband and as such the sale is covered U/s 15(2) of the pre-emption Act? If so its effect? OPD
(iii) Whether the suit is not within time?OPD
(iv) Whether the suit is bad for partial pre-emption?OPD
(v) Whether the proceedings for partition have been initiated if so, its effect?OPD
(vi) Whether the defendants have effected any improvement on the land in question? If so to what extent and entitled Satyawan 2013.08.22 14:11 "I attested to the accuracy and integrity of this document"
High Court Chandigarh RSA No. 3179 of 1987 3 to it?
(vii) Relief.
5. Findings on issues No. 1 to 4 & 6 were recorded in favour of the plaintiffs, while on issue No.5 it was observed that there was no evidence on file to show that the suit land had been partitioned. Mere initiation of the partition proceedings did not affect the decision of the case in any way. The suit of the plaintiffs was decreed with costs subject to payment of `53,376-50ps minus 1/5th pre-emption money ` 9400/- already deposited by the plaintiffs.
6. The vendees (defendants) filed an appeal before the Additional District Judge, Karnal. In appeal, issue No.2 as framed by the learned trial Court was amended as follows:-
"Whether Chalti, vendor of the property had succeeded to the property through her mother and the latter had inherited the same from her husband, as alleged?"
7. The case was sent to the learned trial Court for recording evidence on the amended issue and submit the report. The trial Court submitted its report on 12.02.1985 against which the defendants filed objections. The appellate Court upheld the decision of the learned trial Court and dismissed the appeal with costs. RSA No. 3180 of 1987
8. In this case also a civil suit 535 of 1982 was filed by Ram Parkash, Ram Sarup, Banarsi and Om Parkash sons of Smt. Surji, plaintiffs against Smt. Chalti Devi, who had sold the suit land to the defendants vide sale deed dated 22.12.1981 for a sum of ` 42,000/-. The plaintiffs claimed Satyawan 2013.08.22 14:11 "I attested to the accuracy and integrity of this document"
High Court Chandigarh RSA No. 3179 of 1987 4 their superior right of pre-emption being co-sharer of the suit land. This suit was also contested by the defendants with the similar averments as taken in the other suit as mentioned above.
9. The pleadings of the parties led to the framing of the following issues by the trial Court:-
(i) Whether the plaintiffs have got a superior right to pre-
empt the sale in question?OPP
(ii) Whether the sale consideration was fixed and paid in good faith? OPD
(iii) If issue No.2 is not proved what was the market value of the suit land at the time of its sale?OP Parties
(iv) Whether the suit is not within limitation?OPD
(v) Whether the suit is bad for partial pre-emption?OPD
(vi) Whether the plaintiffs are estopped from filing the present suit by their own act and conduct?OPD
(vii) Whether the sale is covered under Section 15(2) of the Punjab Pre-emption Act?OPD
(viii) Relief.
10. Findings on issues No. 1, 2, 3 & 7 were recorded in favour of the defendants, while the finding on issues No. 4, 5 & 6 were recorded in favour of the plaintiffs and the suit of the plaintiffs was ordered to be dismissed with costs.
11. The plaintiffs preferred the appeal, which was heard by the Additional District Judge, Karnal. The first appellate Court found merit in the appeal and the same was accepted. The suit of the plaintiffs was decreed for possession on payment of ` 47,751-50ps minus 1/5th pre-emption money already deposited.
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High Court Chandigarh RSA No. 3179 of 1987 5
12. Not satisfied with the judgment of the learned appellate Court the vendees came up with this appeal. During the pendency of the appeal, Mangat Ram, Hukma Ram and Multan Singh have died and are now represented by their legal heirs.
13. I have heard the learned counsel for the appellants in both the appeals and have gone through the records with his assistance.
14. learned counsel for the appellants has argued that the plaintiffs have claimed their superior right of pre-emption being co-sharers. This fact is not disputed that during the pendency of the appeal, the suit land was partitioned and the evidence to this effect was produced before the first Appellate Court by way of additional evidence. The learned first Appellate Court has brushed aside that evidence on the ground that the partition of joint land during the pendency of the appeals is of no consequence. The plaintiffs had to prove their superior right of pre-emption upto the date of decree of the trial Court only. He has further argued that Section 15 of the Act (as applicable to the State of Haryana) has been amended vide gazette notification dated 17.5.1995. As per the change in law, a co-sharer has no right to bring a suit for possession by way of pre-emption. The appeal is continuation of the suit as such the superior right of pre-emption is no more available to the plaintiff-respondents.
15. The substantial questions of law as arise in this appeal are as follows:-
1. What is the effect of partition of the land in dispute during the pendency of the first appeal?
2. Whether the amended provisions of Haryana amended Act No. 10 of 1995 are retrospective in nature and affect Satyawan the pending appeals in the pre-emption suits?
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High Court Chandigarh RSA No. 3179 of 1987 6
16. The provision of Section 15 of the Act came up for examination before Constitution Bench of the Apex Court in the case Shyam Sunder & Anr. v. Ram Kumar and Anr. JT 2001(6) SC 94. The Hon'ble Bench observed as follows:-
"11. An analysis of the aforesaid decisions referred to in first category of decisions, the legal principles that emerge are these:
1. The pre-emptor must have the right to pre-empt on the date of sale, on the date of filing of the suit and on the date of passing of the decree by the Court of the first instance only.
2. The pre-emptor who claims the right to pre-empt the sale on the date of the sale must prove that such right continued to subsist till the passing of the decree of the first court. If the claimant loses that right or a vendee improves his right equal or above the right of the claimant before the adjudication of suit, the suit for pre-emption must fail.
3. A pre-emptor who has a right to pre-empt a sale on the date of institution of the suit and on the date of passing of decree, the loss of such right subsequent to the decree of the first court would not affect his right or maintainability of the suit for pre-emption.
4. A pre-emptor who after proving his right on the date of sale, on the date of filing the suit and on the date of passing of the decree by the first court, has obtained a decree for pre-
emotion by the Court of first instance, such right cannot be taken away by subsequent legislation during pendency of the appeal filed against the decree unless such legislation has retrospective operation."
17. The observations of the Hon'ble Supreme Court answers the first substantial question of law and the same is decided against the appellants.
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High Court Chandigarh RSA No. 3179 of 1987 7
18. Now the second substantial question of law is to be answered as to whether the amendment of provisions of Section 15 of the Act was retrospective. This point was also examined comprehensively by Hon'ble the Supreme Court in the aforesaid case and it has been observed as follows:-
"47. For the aforestated reasons, we approve the view of law taken in Didar Singh etc. v. Ishar Singh (dead) by Lrs. Etc. (supra) and further hold that the decision in the case of Ramjilal v. Ghisa Ram (supra) does not lay down the correct view of law.
48. 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-emotion 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."
19. In civil suit No. 535 of 1982, the suit was filed on 3.12.1982 and decided on 28.7.1984, against which appeal was filed on 3.9.1984 and decided on 21.7.1987. In Civil Suit No. 164 of 1982, suit was filed on 29.5.1982 and decided on 18.7.1984, against which appeal was filed on 4.8.1984 and decided on 21.7.1984. The amendment Act came into force on 17.5.1995. In a suit for pre-emption, the pre-emptor has to prove his right to pre-empt on the date of sale, on the date of filing of the suit and on the date of passing of decree by the Court of the first instance only.
20. In view of the principle of law with regard to the applicability of the provisions of Section 15(2) of the Act, the second substantial question of law is also decided against the appellants. There are no merits in both these appeals and the same are ordered to be dismissed. The plaintiff- Satyawan 2013.08.22 14:11 "I attested to the accuracy and integrity of this document"
High Court Chandigarh RSA No. 3179 of 1987 8 respondents were allowed to withdraw the entire amount deposited by them vide order dated 20.5.1988. They have used the above amount for their benefit for the last 25 years. They are directed to deposit the above amount within a period of two months from the date of this judgment along with interest @ 9% per annum from 20.5.1988 till the date of payment. On deposit of the amount, they will be entitled to execute the decree of the trial Court in Civil Suit No. 164 of 1982 and first Appellate Court in Civil Suit No. 535 of 1982 on the same terms & conditions as mentioned in the decree-sheet.
21.08.2013 (SURINDER GUPTA) Satyawan JUDGE Satyawan 2013.08.22 14:11 "I attested to the accuracy and integrity of this document"
High Court Chandigarh