ANIL KUMAR Vs. GHISU

JUDGEMENT

(1.) This appeal has been filed by the vendee against the judgment and decree of the lower appellate Court vide which the suit of the plaintiff-pre-emptor was decreed.

(2.) The facts as they emerge from the records of this case are that one Smt. Champa sold 14 Kanals of land in favour of Anil Kumar, the vendee out of land measuring 195 Kanals 11 Marlas being 3/20th share of total land, as detailed in the head note of the plaint, situated at village Kalayat, as per jamabandi for the year 1980-81. The trial Court dismissed the suit of the plaintiff-pre-emptor by holding that the sale was effected by a female and, therefore, the same was pre-emptible under Section 15(2) of the Punjab Pre-emption Act (hereinafter referred to as 'the Act'). However, the factum of plaintiff-respondent being a co-sharer in the joint khewat was not disputed. The plaintiff-pre-emptor filed an appeal before the learned lower appellate Court which has been allowed by following the law laid down in Atam Parkash v. State of Haryana and others,1987 RRR 116. In this case clauses 'First', 'Secondly' and 'Thirdly' of Section 15(1)(a), 'First' 'Secondly' and 'Thirdly' of Section 15(1)(b) Clauses 'First' 'Secondly' and 'Thirdly' of Section 15(1)(c) and the whole of Section 15(2) have been declared to be ultra vires the Constitution. The relevant observation of the Hon'ble Supreme Court in Atam Parkash's case are reproduced below :

(3.) The proposition of law laid down in Atam Parkash's case holds the filed. Since Section 15(2) of the Act has been abrogated, the plaintiff's right of pre-emption would be governed by Section 15(1) of the Act. The plaintiff respondent, admittedly, being a co-sharer in the disputed land is, therefore, entitled to succeed in the pre-emption suit.