LEHNU RAM Vs. BIHARI LAL ETC.

JUDGEMENT

(1.) This is an application under Article 133(1) of the Constitution of India for a certificate for appeal to the Supreme Court against the judgment of this Court, dated 6th March, 1972.

(2.) According to Sec. 15 of the Punjab Preemption Act, 1913 (hereinafter called the Act of 1913) the right of pre -emption in respect of the agricultural land and village immovable property was conferred on person mentioned thereunder. According to Clause (b) sub -clause fourthly of Sec. 15 of the Act of 1913 the right was conferred on all the co -sharers in the case of sale of a share out of a joint land or property where it is made by all the co -sharers jointly. Sec. 8 of this Act gave powers to the local Government to exclude any local area so that any class of sale, could not give rise to a right of pre -emption. Accordingly on 6th March, 1917, the Punjab Government issued notification No. 4669 in exercise of its powers under Sec. 8 of the Act of 1913 excluding the persons mentioned in sub -clause fourthly of Clause (b) of Sec. 15 from exercising the right of pre -emption, in respect of the sales mentioned in the notification. Thereafter in the year 1960 Sec. 15 of the aforesaid Act was amended whereby under Clause (b) firstly, secondly and thirdly a co -sharer was given a right to pre -empt the sale of a share out of a joint land by one of the co -sharers in the order given therein, and under Clause (b) fourthly of Sec. 15 the right of pre -emption was given to other co -sharers.

(3.) The suit out of which this petition has arisen was filed by the Plaintiff -Petitioner to pre -empt the sale made by Smt. Dugli on the ground that he was a co -sharer with her. The Defendants raised a plea that the suit was not maintainable inasmuch as the right of a co -sharer to pre -empt the land had been taken away in so far as District Kangra, of which the present District Kulu was a part, was concerned. The Plaintiff thereupon contended that in view of the drastic changes effected in Sec. 15 of the Act of 1913 by virtue of the Punjab Pre -emption (Amendment) Act, 1960 (hereinafter called the Amendment Act of 1960) the entire Sec. stood substituted by a new Sec. and that the notification of 1917 had become a dead wood, it could not be reconciled and made to stand together with this amendment. The contention of the Plaintiff did not find favour with the Subordinate Judge, Kulu, and he held that the notification still holds the field and that it was not in any way repealed and he, therefore, dismissed the suit. The District Judge on appeal reversed the finding of the Subordinate Judge and decreed the suit of the Plaintiff. Thereafter the Defendant filed an appeal in the High Court. The appeal was accepted by this Bench. The judgment and decree of the District Judge were reversed and the judgment and decree dismissing the suit of the Plaintiff by the Subordinate Judge were restored. It was held by this Court that the Plaintiff -pre -emptor being a co -sharer already stood excluded from claiming a right of pre -emption under the notification of 1917, which remained unaffected by the re -enacted Sec. 15. The said notification excluded the co -sharers in Kangra district (because at the time when the notification was enforced Kulu was a part of Kangra district) from claiming pre -emption. The notification was held not to be inconsistent with the provisions re -enacted and that the notification was not repealed. The question, therefore, is whether by the amendment of Sec. 15 of the Act of 1913 by the Amendment Act of 1960 the notification dated 6th March, 1917, stood repealed so as to entitle a co -sharer to pre -empt a sale of the joint property made by one of the co -sharers or the notification still holds the field so as to exclude the co -sharers from claiming a right of pre -emption. The point as to what is a substantial question of law of general importance had been decided by their Lordships of the Supreme Court in Sir Chunilal v/s. Mehta and Sons Ltd. v/s. Century Spinning and Manufacturing Co. Ltd. : A.I.R. 1962 S.C 1314, and it was held: