PARTAP SINGH Vs. NIRMAL SINGH

JUDGEMENT

(1.) PARTAP Singh has filed this appeal under Clause X of the Letters Patent against the judgment and decree of a learned single Judge of this Court dated may 7, 1975 by which the appeal filed by Nirmal Singh and others was allowed. The facts of the case, on which there is no dispute, are as follows:--Vir Singh son of Saudagar Singh sold his agricultural land measuring 67 Kanals 4 Marias situated in village Sur-singhwala to Nirmal Singh and others on December 16, 1967, for a consideration of Rs. 24,000. Partap Singh later on claiming himself to be the nephew of Vir Singh filed a suit for declaration and in the alternative for possession of the land in exercise of his superior right of pre-emption. The suit was contested by the vendee-defendants. On the pleadings of the parties, various issues were framed. During the course of trial, the relief on the basis of the declaration was given up and decree in the suit was claimed only on the basis of superior right of pre-emption. The trial court found that the plaintiff had a superior right of preemption and accordingly passed a decree for possession by pre-emption on payment of Rs. 24,000. The plea in respect of improvements set up by the vendee-defendants was negatived. Feeling aggrieved from the judgment and decree of the trial Court, the vendees preferred an appeal which was dismissed by the learned Additional District Judge, ferozepore. Still dissatisfied, the vendees preferred Regular Second appeal No. 1835 of 1970, which, as earlier observed, was allowed by a learned single Judge of this Court on the ground that after the enforcement of the Punjab Pre-emption (Repeal) Act, 1973 (hereinafter referred to as the 'repealing Act') no decree could be passed in a suit for preemption. Dissatisfied from the judgment and decree of the learned single Judge, the present appeal under Clause X of the Letters Patent has been preferred by the pre-emptor.

(2.) THE Motion Bench at the time of the motion hearing admitted the appeal and ordered the same to be heard by a Full Bench. That is how the matter has been placed before us.

(3.) IT was strenuously contended by Mr. Bahl, learned counsel for the appellant, that the vendees-defendants did not contest the superior right of preemption of the plaintiff; that only issue No. 10 relating to the improvements alleged to have been made was pressed before the learned Additional District Judge; that the decree for possession by pre-emption passed in favour of the plaintiff-appellant had become final as the same was not challenged on merits before the first appellate Court; that the regular second appeal filed in this Court by the vendees was only against compensation and that in this situation, the learned single Judge fell in error in invoking the provisions of the Repealing Act and in dismissing the suit of the plaintiff-appellant. It was also submitted by the learned counsel that an appeal against the decree of the first appellate Court in respect of improvements only, would not be deemed to be an appeal against the decree for possession by preemption and that while dismissing such an appeal which has been filed only in respect of compensation, no decree shall be deemed to have been passed by the Court in a suit for pre-emption after the coming into force of the Repealing Act. In support of the aforesaid contention, the learned counsel relied on the following two judgments:- (1) Thakar Singh v. Partap Singh, 1960-62 Pun LR 732 : (AIR 1961 punj 375); and (2) Aziz Din v. Sham Das, 91 Pun Re 1892. It was further argued by the learned counsel that the regular second appeal was neither maintainable nor competent so far as the same related to the preemption decree and the defendants-vendees could not legally take up the pleas in the regular second appeal, which they had abandoned in the first appellate Court. In support of this contention, the learned counsel placed reliance on the following judicial pronouncements of the different High Courts:- (1) Abdul Karim v. The Shop Thakar. Ran-Jaggu Rani, AIR 1923 Lah 124; (2) Muhammad Aslam v. F. Mehr Singh-Attar Singh, AIR 1927 lah 768; (3) Dheru v. Hira Lal, AIR 1932 Lah 343; (4) Firm Meghraj roormal v. Firm Anup Singh Battu Mal, AIR 1935 All 1004; (5) Bawa singh v. Mt Taro, AIR 1951 Simla 239; (6) Sheo Prashad Rambhajan v. Kanhiyalal Ramniwas, AIR 1953 Ajmer 52; and (7) Ramanujamma v. Nagamma, AIR 1968 Andh Pra 223. 3-A. On the other hand, it was submitted by Mr. Sachdeva, learned counsel for the vendees-respondents that the regular second appeal was filed against the judgment and decree of the learned Additional District Judge affirming the judgment and decree of the trial Court and that the learned single Judge was right in holding that if the regular second appeal was to be dismissed, then It would result in passing a decree in a pre-emption suit which could not legally be done.