HAKIM Vs. SANTU

JUDGEMENT

(1.) The only point for consideration in this case is as to whether the notification, No. 4662, dated 6th March, 1917, issued under S.8 (2) of the Punjab Pre -emption Act, 1913, is still alive and operative or has been impliedly repealed by substituted and amended S.15 of the Punjab Pre -emption (Amendment) Act No. 10 of 1960. This question has arisen in the following circumstances: - One Dagu sold land measuring 38 kanals 12 marlas with share in Shamilat along with one house (as detailed in the plaint) situate in Tika Jagatkhana Mauza Thara, Tahsil Hamirpur, District Kangra to Santu and others, sons of Asa, respondents (defendants) by a registered sale deed, dated 28 -4 -1959, for Rs. 6,000.

(2.) Gokal plaintiff (appellants are legal representatives of Gokal plaintiff) filed a suit for possession by pre -emption on the ground that he was an agnate of Dagu vendor, within four degrees and was also a co -sharer in the Khata and for this reason he had a preferential right of pre -emption. It was also alleged that the sale price had not been fixed in good faith or actually paid and therefore the plaintiff was entitled to pre -empt the sale on payment of the market value of the property. The suit was contested by the vendees -respondents. On the Pleadings of the Parties the following preliminary issue was framed on 26 -10 -1960: "Whether the plaintiff has a superior right of pre -emption? Opp."

(3.) It was conceded by the learned counsel for the defendants -vendees that Gokal (plaintiff) was the fathers fathers brothers son of Dagu, vendor. From the documents produced on file it was proved that the Plaintiff Gokal was a co -sharer in the land and was related to the vendor as stated above. Before the Sub -Judge, the vendees -defendants claimed that the plaintiff had no right to pre -empt the sale under the provisions of S.15 of the Punjab Pre -emption Act of 1913 as amended by Punjab Act No.10 of 1960. Another objection was that being a co -sharer, the plaintiff had no right of pre -emption by virtue of the notification No. 4662 dated 6 -3 -1917 issued under Sec. 8 (2) of the Punjab Pre -emption Act, 1913.