PRITHI PAL SINGH Vs. AMRIK SINGH

JUDGEMENT

(1.) The plaintiff-respondents filed a suit for possession by way of pre-emption of sale of the suit land by Amrik Singh vendor in favour of defendant-appellants vide a registered sale deed dated 23.5.1979. He claimed superior right of pre-emption on the ground that he is brother of the vendor which claim squarely fell in Clause 'Secondly' of section 15(1)(a) of the Punjab Pre-emption Act, as applicable to the State of Haryana. The suit was decreed by the learned Sub-Judge Second Class, Karnal, vide judgment and decree dated 15.9.1982. The appeal filed by the vendee-defendants failed and was dismissed by the learned Additional District Judge Karnal, vide judgment and decree dated 30.5.1983. They then filed the present regular second appeal in this Court.

(2.) In view of the Supreme Court judgment in Atam Parkash V. State of Haryana and others, 1986 89 PunLR 329, Clause 'Secondly' of section 15(1)(a) of the said Act has been held ultra vires the Constitution. Therefore, the ground on which the superior right of pre-emption was claimed by the respondents not available to them. The learned counsel for the respondents, however, moved C.M. No. 1360-C of 1986 under Order 6, Rule 17 read with section 151, Code of Civil Procedure, praying for amendment of plaint so as to claim right of pre-emption on the ground that the respondents were co-shares in the suit land with his brother Amrik Singh at the time of sale which is the subject-matter of this litigation. This application has been opposed by the learned counsel for the appellants. On behalf of the respondents, reliance has been placed on Shikharchand Jain V. Digamber Jain Praband Karini Sabha, 1974 AIR(SC) 1178 to contend that as a result of the judgment of the Supreme Court in Atam Parkash's case there is a change in the circumstances and claim of superior right of pre-emption on the ground of consanguinity being no longer available, the respondents should be allowed to amend the plaint to introduce the plea that as co-sharers in the suit land they are entitled to pre-empt the sale. He further submitted that it is admitted on both sides during the course of evidence that the respondents alongwith the vendor were the co-sharers in the suit land. In my view Shikharchand Jain's case is of no help of the respondents. In that case amendment was allowed because of the subsequent events which had a hearing on the facts of the case and gave rise to a fresh cause of action. Atam Parkash's case simply declares certain provision of section 15 of the said Act as ultra vires the Constitution. This does not bring about any change in the circumstances of the present case.

(3.) It is well settled that a pre-emptor cannot be allowed to introduce a fresh ground to claim right of pre-emption by amendment of the plaint after the period of limitation for the institution of a suit for pre-emption has expired. Right of pre-emption is a piratical right and the vendee has a right to defeat it even on a technical ground. There is, thus, no equity in favour of the pre-emptors. I find support for this view from Shankar Singh V. Chanan Singh, 1968 CurLJ 363, Gurmukh Singh V. Dalip Singh, 1971 PunLJ 224 and Mohinder Kaur V. Rana Joginder Singh, 1985 PunLJ 240. The prayer for amendment of the plaint is, therefore, declined.