PALA Vs. DALBIR

JUDGEMENT

(1.) BY this order, I shall dispose of misc. application as well as regular second appeal.

(2.) BRIEFLY stated the facts are that the plaintiff-appellant filed suit for possession by way of pre-emption on 9.3.1990 for pre-empting the sale-deed dated 11.5.1989 vide which 20 kanal 3 marlas of land was sold by respondent No. 3. The pre-emption was claimed on the basis of co-sharership. The learned trial Court, vide judgment and decree dated 2.9.1993 decreed the suit of the appellant. Defendant-respondents feeling aggrieved by the judgment and decree of the learned trial Court, preferred an appeal which was allowed vide judgment and decree dated 5.12.1995 passed by the learned Additional District Judge, Hisar. The learned lower Appellate Court held that in the State of Haryana the right of pre-emption of co-sharer under the Punjab Pre-emption Act, 1913 amended by Haryana Amendment Act, 1995 has been taken away and in view of the said amendment, the suit filed by the plaintiff was liable to be dismissed and accordingly the appeal filed by the defendants was allowed and suit of the plaintiff was dismissed. The plaintiff-appellant has challenged the said judgment and decree of the learned Lower Appellate Court in this Regular Second Appeal.

(3.) IN view of above, the learned counsel for the appellant submitted that since the lower Appellate Court had allowed the appeal only on preliminary point that the suit was not maintainable in view of the amendment, the judgment and decree dated 5.12.1995 passed by the learned lower Appellate Court may be set aside and the case be remanded back to the learned Appellate Court for fresh decision on merits in accordance with law.