Darshan Singh vs Lachhman Singh and others

Harbans Singh, J.—On the 28th May, 1973, an appeal (R.S.A. 1825 of 1968) filed by Darshan Singh, one of the vendees against whom a decree for possession by pre-emption had been passed by the Courts below in favour of Lachhman Singh, came up for hearing in the presence of the parties'' counsel. In view of the provisions of section 3 of the Punjab Pre-emption, (Repeal) Act, 1973 and the Bench decision of this Court in Harbans Kaur v. Sardara Singh 1973 CRLJ 663, L. P. A. 130 of 1972, decided on 2nd May, 1973, since reported in 1973 CLJ 668 , the appeal of the vendee was accepted and the suit of the pre-emptor was dismissed.

A few days later the present review application (R.A. 26-C of 1973) was filed by Lachhman Singh pre-emptor seeking review of this order on the ground that there was a mistake apparent on the face of the record.

The sale had taken place by one sale-deed for a total sum of Rs. 3500/- of the total area of 36 kanals 16 marlas. The sale deed is Exhibit D-l. Darshan Singh and Gurbachan Singh, sons of Gokal Singh, Mohan Singh, Amar Singh, Jaswant Singh and Bhupinder Singh, sons of Dalel Singh, and Dogar Ram son of Nathu Ram were the joint purchasers. Then it was described in the sale-deed that out of the aforesaid land 14 kanals 16 marlas will belong to Darshan Singh and Gurbachan Singh, 12 kanals to-Mohan Singh, Amar Singh, Jaswant Singh and Bhupinder Singh and 10 kanals to Dogar Ram. Before the Sub-Registrar the entire amount was tendred by Darshan Singh. Before the trial Court, pre-emption was sought on the basis that the pre-emptor was a tenant. Dogar Ram admitted the factum of the pre-emptor being a tenant and thus accepted his claim to pre-emptor but the others did not.

The suit was decreed in respect of the whole land by the trial Court. Darshan Singh alone filed an appeal which was dismissed by the Additional District Judge. He then filed a regular second appeal (R.S.A. 1825 of 1968) in this Court. Darshan Singh impleaded all the parties as respondents, including Dogar Singn alias Dogar Ram. As already stated, this appeal was pending when the Punjab Act 11 of 1973 was passed repealing the Punjab Pre-emption Act and, by section 3 thereof, directing that no decree shall be passed in a pre-emption suit after the enforcement of this Act. Section 3 of this Act was interpreted by a Bench of this Court in Harbans Kaur''s case (supra) to mean that no decree can be passed in favour of a pre emptor.

It was urged by the learned counsel for Lachhman Singh before me that in as much as only Darshan Singh had filed an appeal, the suit could be ordered to be dismissed qua him alone and not others. On the other hand the learned counsel for the respondent-vendee Darshan Singh has urged that the provisions of Order 41, rules 4 and 33 Civil Procedure Code, are directly applicable, because the whole appeal proceeds on the common point of law that no decree can be passed in favour of a pre-emptor on any ground and, therefore, even if the other vendees have not tiled any appeal, that would not prevent the Court from passing a decree which ought to have been passed even in favour of those who were not the appellants. In support of this he has cited Giasi Ram and Others Vs. Ramjilal and Others, , Mahabir Prasad v. Jage Ram AIR 1971 SC 72, and Ram Chanaer and others v. Amar Singh 1973 RLR 716, L. P. A. 318 of 1972, decided on 25th July, 1973. He also placed reliance on an earlier judgment delivered by me in Hari Kishan Major v. Mst. Gaindi 1966 Cur. LJ 406.

The learned counsel for Lachhman Singh has also urged that the other veedees have already withdrawn their amount. However, on behalf of the vendee it is urged that this is no impediment in the way of a proper decree being passed because, if they had withdrawn the money on the basis of the decree that had been passed by the Courts below and if that decree was reversed latter, there was ample power in the Court to put back the parties in their original position by passing an appropriate order. In this connection the learned counsel for the vendee has relied upon the decision in Bhau Ram v. Baij Nath Singh AIR 1961 SC 1327.

All that I need say is that this is a case in which benefit of section 3 of the Punjab Pre-emption (Repeal) Act, 1973 has to be given to the vendee and the point involved is not such which can be said to be a mistake of law requiring interference in a review application.

The last point urged was that Dogar Ram, one of the vendees, is dead. Dogar Ram was a party at the time of the hearing of the appeal and no such statement was made at that time and now it is not possible for me to go into this question.

For the reasons given above, I see no merit in this review application and dismiss the same, leaving the parties to bear their own costs.