KALU RAM Vs. MADHO RAM

JUDGEMENT

(1.) These are two connected and consolidated regular second appeals, and can conveniently be disposed of by a single judgment. Both the suits related to the right of pre-emption claimed by the plaintiffs on the basis of their being cosharers, along with the vendors. In both suits, the vendees are strangers to the family of the vendors. RSA No. 169/67 is directed against the decision of the District Judge, Hoshiarpur, whereby agreeing with the finding of the Senior Sub- Judge. Kangra. he has dismissed the suit of the plaintiffs Kalu Ram and three others and repelled their contention that the notification No. 4669 dated 6th March. 1917 (hereinafter to be referred as the notification of 1917) does not hold the field because of the amendment of Section 15 of the Punjab Preemption Act 1913 (hereinafter to be referred as the Act of 1913) by the Punjab Pre-emption (Amendment) Act. 1960 (hereinafter to be referred as the Amendment Act of 1960). The plaintiffs in that suit claimed to be co-sharers with Sita Ram vendor and the latter had sold on 31st May, 1960. 5 kanals and 9 marlas of his land in Tika Aloh. Mouza Kaleha of Tehsil Dehra, in favour of one Madho Ram who was a stranger to the family of Sita Ram. Accordingly the plaintiffs claimed a preferential right to pre-empt over Madho Ram and filed the suit for claiming back possession of disputed land from Madho Ram by exercise of their right of pre-emption. The contention of the defendant-vendee has been that the notification of 1917 excluded co-sharers and deprived them of their right of preemption conferred by Section 15 (b) Fourthly, of the Act, of 1913. Therefore the plaintiffs could not claim a right of pre-emption. In reply, the plaintiffs contended that Section 15 of the Act of 1913 has been drastically amended by the Amendment Act of 1960 and as such the said notification of 1917 cannot he reconciled and made to stand together with these amendments. In the result, the said notification no longer stands and the plaintiffs revive their right of pre-emption. The contention of the plaintiffs did not find favour both with the trial Court and the first appellate Judge. The suit was accordingly dismissed. The plaintiffs came in second appeal before the High Court.

(2.) A learned single Judge of this Court (P. S. Safeer. J.) however, found that an important question of law arose in the case, inasmuch as there was conflict of decision as to the validity and enforcement of the notification of 1917 in preemption cases. He has, therefore, recommended, for constitution of a larger Bench so that the controversy is resolved and an authoritative decision is given. Accordingly the learned judge made a reference order and the present Division Bench is constituted for the purpose.

(3.) At a subsequent date. R.S.A. No. 108 of 1968 was instituted. This second appeal is directed against the decision of the District judge, Mandi. who has reversed the finding of the Subordinate Judge. First Class Kulu and has decreed a similar suit for pre-emption filed by Lahna Ram against Smt. Dugli and others. It was stated in that suit, that Smt. Dugli sold to Behari Lal and four others (Defendants 2 to 51 by a sale-deed dated 21st December, 1963. 13 bighas and 4 biswas of land situate in Phati Jarri, Kothi Harkandhi of Tehsil and District Kulu. The plaintiff claimed to be co-sharers with Smt. Dugli defendant vendor. According to him. the vendee-defendants are strangers to the family and as such the plaintiff has a preferential right to pre-empt the property against them. Again the contention of the vendee-defendants has been, that the notification of 1917 excluded co-sharers from claiming right of pre-emption. As such the plaintiff cannot have such right against them. The plaintiff contended in reply that the said notification of 1917 no longer held the field because the same has been impliedly repealed by the amendments made in Section 15 by the Amendment Act of 1960. The contention of the plaintiff did not find favour with the learned Subordinate Judge and he dismissed the suit. However, the learned District Judge Mandi disagreed with him and decreed the suit, holding that the notification of 1917 was no longer good law having been impliedly repealed by the amendments of Section 15 by the Amendment Act of 1960.