SAMPURAN SINGH Vs. JAL KAUR

JUDGEMENT

(1.) THE sole question for decision in this second appeal from an order of remand passed by the lower appellate Court is whether the right to sue would survive tot he legal representation in a pre-emption suit for possession of agricultural land after the death of the plaintiff. The pre-emption suit had been brought on the ground that the plaintiff was the real brother of the vendor. The plaintiff died during the pendency of the suit in the trial Court before any decree was passed. The sister and the mother of the plaintiff wanted to continue the suit. The trial Court rejected the application of the legal representatives dismissed the suit. An appeal filed by the plaintiff-pre-emptor's legal representatives was accepted by the Additional District Judge, Hissar, and the case has been remanded to the trial Court for disposal in accordance with law. The order of the remand has been challenged in this second appeal.

(2.) CH. Roop Chand, the learned counsel for the appellant, relies on a full Bench decision of this Court in Ramji Lal v. The State of Punjab 68 Punj LR 345= (AIR 1966 Punj 374) (FB ). In support of his contention that the plaintiff-pre-emptor should have continued to have a superior right of pre-emption on the three crucial dates namely the date of sale, the date of filing the suit and the date of decree by the trial Court. A single Bench decision of this Court in Smt. Pari v. State of Punjab (1966) 68 Pun LR 844 at p. 845 has also been cited in support of the contention that the right to sue would not survive to the legal representatives of the plaintiff-pre-emptor in such a case. My attention has, however, been drawn to a ruling of the Supreme Court in Hazari v. Neki, AIR 1968 SC 1205, which lays down that the right of pre-emption under Section 15 (1) of the Punjab pre-emption Act, 1913, can be exercised by the legal representatives of the deceased plaintiff pre-emptor. In that case also the suit had been filed by the uncle of the vendor on the ground of the said relationship. The uncle died after the suit had been decreed but during the pendency of an appeal. The vendor was one of the three legal representatives of the deceased who wanted to continue the pre-emption suit. The Hon'ble Judges of the Supreme Court observed that it was not correct to say that the right of preemption was a personal right on the part of the pre-emptor to get the retransfer of the property from the vendee. The correct legal position according to the Hon'ble judges was that the statutory law of pre-emption imposed a limitation or disability upon the ownership of property to the extent that it restricted the owner's right of sale and compelled him to sell the property to the person having the statutory right of pre-emption. In other words, the statutory right though not amounting to an interest in the land was a right which attached to the land and which could be enforced against the purchaser by the persons entitled to pre-empt. The legal representatives were, therefore, allowed to exercise the right of pre-emption and to continue the suit filed by their deceased uncle. Ch. Roop Chand seeks to draw a distinction on the ground that a pre-emption decree had been granted in this case before the plaintiff-pre emptor had died. The deceased plaintiff had continued to hold the superior right of pre-emption on all the three crucial dates and his death after he had secured a decree from the trial Court was described not to change the position. Ch. Roop Chand 's argument seems to be that every decision is intend to dispose of that particular case on its own facts and that it cannot serve as a precedent for cases having different facts. This argument could have some force, were it not for the fact that ratio of the Supreme Court ruling in Hazari's case AIR 1968 SC 1205 (supra) has been extended by a Division Bench of this Court to a case where the plaintiff-pre-emptor had died during the trial in the Court of first instance. Reference could in this connection be made to Gurdev Kaur v. Smt. Chanan Kaur 73, Punj LR 800= (AIR 1971 Punj 416 ). The right of pre-emption, based on the ground that the plaintiff was related to the vendor was said to run with the land sold and to pass on the death of the pre-emptor to his legal heirs. The legal representatives were, therefore, allowed to continue the suit even though the person who had filed the suit had died before the trial Court could decide it. The ratio of the Supreme Court ruling in Hazari's case (supra) was followed not only in this case but also in another Single Bench decision of this court in Joginder Singh v. Kartar Kaur, 1970 Cur LJ 436.

(3.) UNDER the circumstances, the legal representatives of Jas Karan plaintiff, who had initially filed this pre-emption suit were rightly allowed by the lower appellate court to continue the proceedings.