GOBINDA Vs. ARJAN

JUDGEMENT

(1.) This appeal of Gobinda Defendant arises out of a suit brought by the Respondents Arjan, and Dev Chand for possession of land measuring 80 kanals and 8 marlas in village Hajampur, on basis of a pre-emptive right. The land had been sold by the vendor Mrs. Veronica Skinner, Defendant No. 2, to Gobinda for a sum of Rs. 804 and the sale was sanctioned by a mutation on 28th of March, 1954. The Plaintiffs founded their claim on a superior right of pre-emption as compared to the vendee as biswedars of the village. A decree for possession was granted only in respect of khasra No. 21/25/1 measuring 4 kanals on payment of Rs. 40. In respect of the other land, the suit was dismissed. From this decree of the Subordinate Judge passed on 8th of May, 1956, two cross-appeals were preferred both by the pre-emptors and the vendee. The area of the land in respect of which the decree was granted was enlarged to 36 kanals and 5 marlas and the pre-emption money was correspondingly raised to Rs. 441-8-0. The cross appeal of the vendee was dismissed.

(2.) From the decree of the Senior Subordinate Judge passed on 29th of January, 1957, Gobinda preferred this appeal (R.S.A. No. 528 of 1957) which was admitted in preliminary hearing by a learned Single Judge on 26th of August, 1957. The Appellant claims possession of this land as a tenant and it is not disputed that in pursuance of the provisions of the Punjab Preemption (Amendment) Act, 1960 (Punjab Act No. 10 of 1960), he must succeed and the Plaintiffs' suit dismissed in toto. The amended Section 15 now vests the right of pre-emption in respect of agricultural land in the tenant who holds under tenancy of the vendor the land or property sold or a part thereof under Sub-clause (Fourthly) of Clause (a) of Sub-section (1), and no such right vests in the biswedars.

(3.) It is, however, contended by Mr. Mittal, the learned Counsel for the Respondents, that the appeal as filed cannot be entertained. In order to appreciate this objection, it is necessary to state that the decree appealed from had been amended on 1st of August, 1957. An application had been presented by the Plaintiffs pre-emptors under Section 152 and Order 47, Rule 1 of the Code of Civil Procedure that the decree which had been passed by the lower appellate Court for possession of 36 Kanals and 5 raarlas should have been made on payment of Rs. 362.8 and not Rs. 441.8. The Court of the Senior Subordinate Judge readily acceeded to the contention raised by the Plaintiffs and treating it as a clerical and patent error in calculation modified the decree accordingly. The decree was ordered to be drawn up accordingly by order of the Court passed on 1st of August, 1957. It is urged by Mr. Mittal that no appeal having been preferred from the amended decree the relief cannot be granted to the vendee-Appellant. It is submitted that the appeal which was filed in this Court on 4th May, 1957 and admitted on 26th of August, 1957, cannot be entertained as the decree appealed from subsists no longer. Concededly, no appeal has been filed from the amended decree.