SADH RAM AND OTHERS Vs. RULIA RAM

JUDGEMENT

(1.) ONE Ram Singh, a Jat of village Kukkar -Majra. sold 1 biswa of agricultural land to Rulia Ram Khatri of Ajnali for Rs. 11/ -. Sadh Ram, brother of Ram Singh pre -empted the sale. Rulia Ram resisted the suit on the only ground, that the sale being opposed to the provisions of Alienation of Land Act the suit was liable to be dismissed. The plaintiff's objection to the plea of the defendant -vendee was that the Punjab (sic) Alienation of Land Act was void, inasmuch as it militated against the fundamental rights as enunciated in Article 19 (1) (f) of the Constitution of India, and that the sale was perfectly valid and the plaintiff was entitled to pre -empt it because of his relationship with the vendor. The only issue framed in the case was: 'Whether the Partial Alienation of Land Act is void and the suit is maintainable.' The trial Sub -Judge, found the issue in the plaintiff's favour and there being no other point of difference between the parties granted the plaintiff a decree on payment of Rs. 11/ -. The vendee appealed to the Sub -Judge, 1st Class, Fatehgarh Sahib at Bassi. Along with this the Deputy Commissioner, Fatehgarh Sahib District applied to the said Sub -Judge, 1st Class under Section 29 (1) of the Pre -emption Act alleging that the decision of the trial Sub -Judge was contrary to the provisions of the Alienation of Land Act, and praying that the same be set aside. The Sub -Judge, 1st Class was inclined to uphold the decision of the trial Sub -Judge, but since he thought that the point raised in the case, viz., whether the Patina Alienation of Land Act was void, was of great importance and involved a substantial question of law as to the interpretation of Clause (f) of Article 19 of the Constitution of India, determination of which was necessary for the disposal of the appeal as well as the application of the Deputy Commissioner, he has referred both the cases to the High Court, with the request that either the question of law mentioned above should be decided or the cases might be transferred to the Court and disposed of finally. Order 46 of the Civil Procedure Code deals with the power of a Subordinate Court to make a reference to the High Court. Rule 1 of the Order lays down that where before or on the hearing of a suit or an appeal in which the decree is not subject to appeal, etc. Any question of law or usage having the force of law arises on which the Court trying the suit or appeal entertains a reasonable doubt the Court may either of Its own motion or on the application of any of the parties draw up a statement of the facts of the case and the point on which doubt is entertained and refer such statement with its own opinion on the point for the decision of the High Court. There is no doubt that in this case if the Sub -Judge had decided the appeal or the application of the Deputy Commissioner no appeal would have been competent to the High court and accordingly the said Sub -Judge was within his rights in making the reference to this Court, but in view of the observations made by him in the order of reference it cannot be said that he had any reasonable doubt about the question of law. So it may be said that, strictly speaking, the reference is not covered by Order 46. Inspire of this my view is that the reference is perfectly legal. Article 228 of the Constitution says that if the High Court is satisfied that a case pending in a Court subordinate to it involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the case it shall withdraw the case and may either dispose of the case itself or determine the said question 01 law and return the case to the Court from which the case had been so withdrawn, etc. Both sides are agreed that the question of law which is the subject -matter of the issue framed in the case constitutes a substantial question as to the interpretation of one of the Articles of the Constitution the determination of which is necessary for the disposal of both the cases, and this Court is quite competent to withdraw the cases from the Court of the Sub -Judge and deal with them in the manner laid down in the Article. The Article does not say how the High Court is to be moved for the exercise of its powers but obviously it can be moved either by the parties or by the Subordinate Court in which the case in question is pending. It may also be mentioned that all the parties before us are agreed as regards the validity and the propriety of the reference by the Sub -Judge. Since the dispute between the parties is confined to the question incorporated in the issue and it would be absolutely useless for us to send back the case to the Court accept the reference and withdraw both the cases from the Court of the Sub -Judge, 1st Class, Fatehgarh Sahib at Bassi to this Court for complete disposal.