KARNAIL SINGH Vs. JASBIR SINGH

JUDGEMENT

(1.) BY this judgment, we shall dispose of the following two Regular Second Appeals, which are directed against the judgment dated 1-4-1961 of the Additional District Judge, Kamal:- (1) R. S. A. No. 560/1961--Karnail Singh and others v. Jabbar Singh. (2) R. S. A. No. 1221/1961 -- Jabbar Singh v. Karnail Singh and others. Both these appeals came up for hearing before Hon'ble Mahajan, J. , and by order dated 27-8-1971, he directed that both the appeals may be laid before the Hon'ble Chief Justice for constituting a Full Bench to decide the law point involved in these appeals. The following observations were made in the order dated 27-6-1971 of Mahajan, J. : -

(2.) THE facts of this case are that Ruhla Singh, defendant No. 1, owned land measuring 705 Kanals and 7 Marias fully described in para No. 1 of the plaint and situated in the area of village Chanal Heri, Tahsil Thanesar, District Kamal (now District Kurukshetra) and he sold the same to Karnail Singh and others, defendants 2 to 10 for Rs. 211,160 on the basis of a registered sale deed dated 27-2-1958, Jabbar Singh plaintiff, who is the minor son of the vendor Ruhla Singh filed suit for possession by pre-emption of this land on payment of the sale price through his next friend on the allegations that his right of pre-emption is superior to that of the vendees, who are strangers. The defendants-vendees contested this suit. They did not admit that the plaintiff was the son of the vendor and had a superior right of pre-emption. In the alternative it was pleaded that the plaintiff and the vendor Ruhla Singh were members of the joint Hindu family and the land in suit belonged to the joint Hindu family and, therefore, the plaintiff had no right to sue for pre-emption. It was also alleged that the plaintiff is a member of the joint Hindu family and is owner of more than 30 standard acres of land, and therefore this suit is not competent. They averred that the plaintiff is estopped from filing this suit. They claimed Rs, 10,000 on account of the improvements made by them on this land after the sale in case decree was passed against them. They pleaded that after the sale, the Punjab Pre-emption Act was amended and this sale is not pre-emptible under the provisions of Section 5 as amended. In his replication, the plaintiff denied the allegations made by the vendees. It was pleaded that he and his father were governed by custom in matters of succession and alienation of property. On these pleadings of the parties, the following issues were framed by the trial Court:-

(3.) MR. Jagan Nath Kausal, learned counsel for Karnail Singh and others, defendants-appellants of R. S. A. No. 560 of 1961, contested the decision of the lower appellate Court on issue No. 7 only. He contended that in view of the provisions of Section 3d of the Punjab Preemption Act No. 1 of 1943, (hereinafter called the Act), as added by Punjab Preemption Amendment Act No. 10 of 1960, the applicability of Section 5 of that Act has to be seen at the date of the ultimate decision in the case and not at the date of the institution of the suit and, therefore, the decision of the lower appellate Court passing decree regarding the entire land in suit excepting five khasra (numbers measuring 40 Kanals cannot be sustained. He maintained that in Section 5 (b) of the Act, no time-limit is fixed upto which the waste land can be reclaimed by the vendee and, therefore, no artificial time-limit can be fixed that the vendees can only reclaim the land upto the date of the institution of the pre-emption suit. He further argued that the law laid down in 1963-65 Pun LR 972 and 1967 Cur LJ (Punj. and Har.) 824 to the effect that the land, which is saved from the pre-emption suit is only the land, which has been reclaimed upto the date of the suit and not beyond that is not correct and is contrary to the law laid down by the Supreme Court in (1963) 3 SCR 858 = (AIR 1963 SC 553) and an earlier Division Bench ruling of this Court reported as 191)0-62 Pun LR 291.