RAM KUMAR Vs. DHARAM SINGH

JUDGEMENT

(1.) WHETHER improvement of status by a vendee prior to institution of pre-emption suit would be a material factor to defeat the right of pre-emption, is the sole question which has been raised and is common in both these appeals (RSA Nos. 4032 and 4033 of 2004) filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code'). The defendant- appellants have challenged concurrent findings of fact recorded by both the Courts below holding that the right of pre-emption of the plaintiff-respondent could not be defeated merely by acquiring proprietary rights and by becoming co-sharers by the defendant-appellants by virtue of sale-deed prior to the filing of suit especially when the earlier sale-deed was also subject-matter of pre-emption suit.

(2.) FACTS are being taken from R.S.A. No. 4032 of 2004 and there is no dispute with regard thereto. Plaintiff-respondent Dharam Singh filed Civil Suit No. 1647 of 1990 for pre-emption in respect of the suit land against the defendant-appellants by placing reliance on the jamabandi for the year 1983- 84. The defendant-appellants had purchased the suit land vide registered sale-deed dated 19.12.1989 for an ostensible sale consideration of Rs. 1,15,000/-. The plaintiff-respondent has been a co-sharer in the khewat out of which the sale was made. It has been asserted that he has been a co-sharer much prior to the execution of sale-deed, at the time of sale-deed and was continuing to be a co-sharer, whereas the vendees defendant-appellants are the strangers. It was claimed that no statutory notice in terms of Section 15 of the Punjab Pre-emption Act, 1913 (for brevity, 'the Act') (as applicable to Haryana) was ever issued to the plaintiff-respondent. Accordingly, a decree for possession by way of pre-emption in respect of the suit land in favour of the plaintiff-respondent was claimed against the defendant-appellants on payment of sale consideration or on payment of any other amount that may be fixed by the Court in respect of the suit land.

(3.) THE trial Court has decreed the suit on 30.8.1993 and the defendant- appellant challenged the aforementioned judgment and decree before the learned lower Appellate Court. On account of amendment made in the Act, taking away the right of a co-sharer to pre-empt the sale, learned lower Appellate Court had allowed the appeal of the defendant-appellants on 9.5.1996 by setting aside the view taken by the learned trial Court in its judgment and decree dated 30.8.1993. On an appeal being Regular Second Appeal No. 1512 of 1996 filed before this Court and in view of the judgment of the Supreme Court in the case of Shyam Sunder and others v. Ram Kumar and another, 2001(3) 754 RCR(Civil) (SC) : (2001)8 SCC 24, the judgment of the learned lower Appellate Court was set aside. It is appropriate to mention that the Punjab Pre-emption (Haryana Amendment) Act, 1995 had taken away the right of re-emption of a co- sharer. However, the Supreme Court in Shyam Sunder's case (supra) has held that the provision was prospective in its operation and in view thereof the judgment of learned lower Appellate Court was set aside. The appeal was remanded back to the lower Appellate Court with a direction to decide the same on merits.