Himachal Pradesh High Court
Smt. Parkash Devi vs Dina Nath on 8 September, 1987
Equivalent citations: AIR1988HP36
JUDGMENT V.P. Gupta, J.
1. This judgment shall dispose of R.S.A. No. 251 of 1986 and R.S.A. No. 252 of 1986 as the questions of law and facts involved in both these appeals are the same and these appeals arise out of a single judgment of the learned District Judge.
2. Briefly the facts are that the respondent Dina Nath (hereinafter the plaintiff) filed a suit for possession by pre-emption of the suit land (fully detailed in the plaint) on the allegations that the suit land was owned by one Larja Ram. Larja Ram sold the suit land along with a house standing thereon in favour of the appellant (hereinafter the defendant) vide a registered sale deed dt. 30-3-1981 for Rs. 22, 000/-. The plaintiff alleged that the market value of land was not more than Rs. 4,000/- as the house property was shown to be-of Rs. 2,500/-. The plaintiff claimed a superior right of pre-emption on the grounds of his being a co-sharer in the khata and he prayed that his suit be decreed for possession by pre-emption on payment of market value.
3. The suit was contested by the defendant and on the pleadings of the parties, the following issues were framed :--
1. Whether the plaintiff has a superior right of pre-emption as alleged ? OPP
2. Whether the sale consideration of Rs. 22,000/- was fixed in good faith and actually paid ? OPD.
3. If issue No. 2 is not proved what was the market value of the suit land at the time of sale ? OP Parties.
4. Whether the suit is bad for partial preemption ? OPD.
5. Whether the suit is not properly valued for the purpose of court-fee and jurisdiction ? OPD.
6. Relief.
4. The Sub Judge, Una vide his judgment dt. 27-9-1984 held that the plaintiff had a superior right of pre-emption. The suit of the plaintiff for possession was decreed subject to payment of Rs. 22,000/- as pre-emption money.
5. Feeling aggrieved from the judgment and decree of the learned Sub Judge, Una, the defendant filed an appeal in the Court of District Judge, Una claiming that the findings of the learned Sub Judge on issues Nos. 1, 4 and 5 were wrong. The plaintiff filed cross-objections claiming that the suit should have been decreed on payment of Rs. 19,500/- only and the learned Sub Judge was wrong in allowing an amount of Rs. 22,000/- as preemption money for the suit land only. It was alleged that Rs. 2,500/-, the price of the house, should have been excluded because the house property was not the subject-matter of the suit. The appeal and the cross-objections were heard by the learned District Judge Una, who dismissed the appeal of the defendant, but accepted the cross-objections of the plaintiff. He thus decreed the plaintiff's suit for the suit land only on payment of Rs. 19,500/- vide his judgment and decree dt. 18-6-1986.
6. The defendant has now filed R.S.A. No. 251 of 1986 and R.S.A. No. 252 of 1986 challenging the judgment and decree of the learned District Judge. R.S.A. No. 251 of 1986 is with respect to the house property which was valued at Rs. 2,500/- while R.S.A. No. 252.
of 1986 pertains to the land for which the plaintiff's suit was decreed on payment of Rs. 19,500/-.
7. I have heard the learned counsel for, the parties.
8. The learned counsel for the appellant contends that in view of the Punjab Preemption (Himachal Pradesh Repealing) Act, 1987 (hereinafter the 1987 Act) the plaintiff's suit cannot be decreed because Section 2 of the 19(57 Act provides that no Court shall pass a decree in any suit for pre-emption. It is contended that the appeal is a continuation of suit and therefore, the plaintiffs suit should be dismissed.
9. The learned counsel for the respondent contends that Section 2 of 1987 Act is not applicable in the facts and circumstances of the present case. He contends that proviso (a) of Section 3 of the 1987 Act will apply in this case because the plaintiff has obtained a final decree by depositing the pre-emption amount. His; contention is that the rights of the parties are governed by the Punjab Pre-emption Act, 1913.
10. I have considered the contentions of the learned counsel for the parties and have also perused the records.
11. The plaintiff filed the, suit for possession by pre-emption in the Court of Sub Judge, Una on 15-10-1981, when the provisions of Punjab Pre-emption Act, 1913 were applicable. The plaintiff claimed a preferential pre-emptive right on the grounds of his being a co-sharer in the suit land and also an agnate collateral of the vendor. He claimed a preferential right of pre-emption under Section 15 of the Punjab Pre-emption Act, 1913.
12. The 1987 Act received the assent of the Governor on 8-5-1987 and it reads as follows :--
"Be it enacted by the Legislative Assembly of Himachal Pradesh in the Thirtyeighth Year of the Republic of India as follows : --
1. (1) This Act may be called the Punjab Pre-emption (Himachal Pradesh Repealing) Act, 1987. (2) It shall come into force at once.
2. On and from the date of commencement of the Punjab Pre-emption (Himachal Pradesh Repealing) Act, 1987, no Court shall pass a decree in any suit for pre-emption.
3. The Punjab Pre-emption Act, 1913, as in force in the areas comprised in Himachal Pradesh immediately before 1st Nov., 1966 and in the territories added to Himachal Pradesh under Section 5 of the Punjab Reorganisation Act, 1966, is hereby repealed :
Provided that such repeal shall not affect :
(a) any decree which has been passed under the Act so repealed and has become final;
(b) any claim for the refund of the deposit made or a security furnished under the Act so repealed; or (C) any expenditure incurred in the discharge of costs under the Act so repealed."
13. The Punjab Pre-emption Act, 1913 was amended by the Punjab Pre-emption (Amendment) Act, 1960 and Section 31 was inserted which reads as follows :--
"No court shall pass a decree in a suit for pre-emption whether instituted before or after the commencement of the Punjab Pre-emption (Amendment) Act, 1960 which is inconsistent with the provisions of the said Act."
14. In AIR 1971 SC 89, Mula v. Godhu it has been observed that the Act of 1960 has a retrospective effect and it applies to all the pending appeals against pre-emption decrees. It has been further held that the appellate Court must recognise the rights newly created by the amending Act of 1960. It was further held that the appellate Court could not pass a decree which was inconsistent with the provisions of Punjab Act No. 10 of 1960 and the appellate Court had to give effect to the amendment.
15. Now a reading of Section 2 of the 1987 Act clearly debars a Court from passing a decree in any suit for pre-emption. The language of Section 2 of the 1987 Act is clear and unambiguous and a suit for pre-emption cannot be decreed by any Court after the enforcement of the 1987 Act.
16. Proviso (a) to Section 3 of the 1987 Act only saves those decrees which had been passed under the repealed Act and which had become final. Similarly proviso (b) allows a person to claim a refund of the deposit made or security furnished under the repealed Act and proviso (c) pertains to the expenditure incurred in discharge of costs etc. under the repealed Act.
17. If Sections 2 and 3 of 1987 Act are read together and a harmonious interpretation is given to both these sections, then it is clear that after the enforcement of the 1987 Act, a Court is not competent to pass a decree for possession by pre-emption in any pre-emption suit or appeal.
18. Both these appeals are a continuation of suit and therefore, in view of the provisions of Section 2 of the 1987 Act, this Court cannot pass any decree in favour of the plaintiff, as the matter is pending before this Court. The present decree under appeal cannot be treated as a final decree and proviso of Section 3 of 1987 Act is not attracted.
19. The net result is that the plaintiff's suit has to be dismissed.
20. The learned counsel for the appellant states that appeal No. R.S.A. 251 of 1986 is not to be pressed because the plaintiff's suit with respect to the house property involved in R.S.A. No. 251 of 1986 has already been dismissed by the District Judge. R.S.A. No. 251 of 1986 is thus dismissed as having been not pressed.
21. As far as R.S.A. No. 252 of 1986 is concerned the same is accepted and the judgment and decree of the learned District Judge dt. 18-6-1986 is set aside. The plaintiff's suit is dismissed. The pre-emption money deposited by the plaintiff for payment to the vendee be refunded to the plaintiff. Both the appeals are disposed of accordingly. The parties are left to bear their own costs throughout.