MADAN GOPAL Vs. RAMESH CHANDRA

JUDGEMENT

(1.) This is a deft's. appeal arising out of a suit for pre-emption. The property in dispute is situated in Kashipur, district Nainital. The Agra Pre-emption Act does not apply to this area. The claim for pre-emption was based on custom.

(2.) On behalf of the deft-appellant it has been urged that by virtue of Section 336, Uttar Pradesh Zamindari Abolition & Land Reforms Act (No. 1 of 1951) this appeal must be allowed and the suit dismissed. Section 336 of the Act reads as follows: "(1) Notwithstanding anything contained in any law, custom, usage or agreement, the right of preemption shall not exist in respect of any sale of any immoveable property in the area to which the Act applies whether made voluntarily or under order of Court. (2) All suits for pre-emption pending in respect of any such property in any Court whether of the first instance or appeal or revision shall stand dismissed, but award of the costs incurred in any such suit shall be in the discretion of the Court." Section 1 of the Act lays down that the Act shall come into force at once except in certain areas with which we are not concerned. The Act was published in the U. P. Gazette on 25-1-1951. It, therefore, came into operation from that date. It is conceded that the area in suit is covered by the Act & the Act is in force in that area.

(3.) If regard be had to the provisions of Section 336 alone, there can be no doubt that since the property in dispute is "in the area to which the Act applies", the right of pre-emption sought for in the suit could not be deemed to exist therein by virtue of Clause (2) of the section, the present suit, which was, on the date on which the Act came into force, pending in this Court in second appeal, must be dismissed. It is, however, contended that the wide language of Section 336 must be controlled by the limited language of Section 339. This section runs as follows: "With effect from the date of publication of the notification under Section 4 in respect of any area: (a) the enactments mentioned in List 1 of Sch. III shall be & are hereby repealed in their application to such area....."