PRITAM SINGH Vs. TEJA SINGH

JUDGEMENT

(1.) This appeal has been filed against the judgment and decree of the Additional District Judge, Amritsar dated March 26, 1962, by which he modified the decree of the trial Court and decreed the suit of the plaintiff partly.

(2.) The facts of the case are that Bishan Kaur sold the land in dispute measuring 62 kanals 15 marlas to the defendants for a consideration of Rs. 5,000/- by a sale deed dated April 9, 1958. The plaintiffs instituted the suit for possession by pre-emption on the ground that they were co-sharers in the land in dispute. The defendants contested the suit and denied the allegations of the plaintiffs. It is stated by them that the plaintiffs have had no superior right of pre-emption. Some other pleas were also taken by the parties which are not relevant for the decision of this appeal. This trial Court came to a conclusion that the case was governed by clause (b) of sub-section (2) of Section 15 of the Punjab Pre-emption Act, 1913 (hereinafter referred to as the Act), and the plaintiffs are not entitled to pre-empt the sale under the aforesaid clause. Consequently, the suit was dismissed by the trial Court. The plaintiffs filed an appeal against the said judgment and decree to the Additional District Judge, who partially accepted it and decreed the suit of the plaintiffs regarding Killa No. 17 of Rectangle No. 22, on payment of Rs. 500/-, on the ground that the plaintiffs had preferential right of pre-emption under clause (b) of sub-section (2) of Section 15 of the Act. The plaintiffs having felt aggrieved against the judgment and decree of the first appellate Court, have come up in appeal to this Court.

(3.) The only contention of the learned counsel for the appellants is that the appellants had a superior right of pre-emption in respect of the land in dispute under sub-clause Fourthly, of clause (b) of sub-section (1) of Section 15, wherein, a right of pre-emption has been given to co-sharers. It is stated by him that the defendants-respondents did not take the plea that sub-section (2) of Section 15 of the Act was applicable to the present case. According to the learned counsel, sub-section (2), constitutes a proviso to sub-section (1) of Section 15 of the Act and in case the defendants-respondents want to take benefit of sub-section (2), they should have taken a plea to that effect in the written statement. On the other hand, the learned counsel for the respondents has submitted that the appellants have to prove their right of pre-emption which had been denied by the respondents. It was not necessary for them to plead whether the case was to be governed by sub-section (2) or sub-section (1) of the Act. He has also stated that the parties understood each others case and they never raised the pleas before the Courts below which they want to be taken in this Court. I have heard the contentions of the learned counsel for the parties and do not find any force in the contention of the learned counsel for the appellants. In the case of sale by the females, sub-section (2) of Section 15 is applicable. If the pre-emptor wants to institute a suit on the grounds mentioned in sub-section (1), the vendee can show that the case was governed by sub-section (2). The right of pre-emption is a piratical right and the pre-emptor has to prove strictly that he has got a superior right of pre-emption. The plea, which the pre-emptor wants to take in this Court was never raised by him in the Courts below. In case the appellants wanted to raise this point in this Court, they should have taken it before the Courts below. In any case sub-section (2) of Section 15 starts with non-obstante clause which operates to set aside that clause which is inconsistent with it. Sub-section (2) therefore, is to be read subject to sub-section (1) of Section 15. A proviso is an exception to main Section to which it is attached. It does not destroy the whole Section. Non-obstante clause has an overriding effect. It has been held by Shamsher Bahadur, J. in Debi Ram and another V. Smt. Chembeli and another,1963 PunLR 50, that sub-section (2) prevails over sub-section (1) of Section 15. The observations of the learned Judge are as follow :-