Didar Singh vs Ishar Singh

J.V. Gupta, J.—This judgment will dispose of Regular Second Appeals Nos. 251 to 256 of 1981, as the question involved is the same in all the appeals.

Vide different six sale deeds, Balbir Singh and Raghbir Singh sold the suit land to the vendees-Appellants. Ishar Singh, Plaintiff, filed the suits for possession by way of pre-emption on the ground that he was in possession of the suit land as a tenant whereas the vendees were trespassers end, thus, he had a superior right of pre-emption. The suits were contested inter alia on the ground that the property, in dispute, was urban immovable property and that the Plaintiff had no right of preemption. The learned trial Court ultimately decreed the suits filed by the Plaintiff. The decree decreeing the suit of the Plaintiff giving rise to Regular Second Appeal No. 251 of 1981, was passed in the following terms:-

In view of my findings on the above issues, the suit of the Plaintiff for possession of the land as detailed in the heading of the plaint is decreed subject to payment of Rs. 9,060/- all told (?) A sum of Rs. 1,600/- had been deposited by the Plaintiff as one-fifth pre-emption money on 11.2.1980. The remaining amount of Rs. 7,460/- will be deposited by the Plaintiff in Court for being paid to the Defendant on or before 27.11.1980 otherwise the suit of the Plaintiff shall stand dismissed. In either case the parties are left to bear their own costs. If the amount is deposited by Plaintiff as directed above, then the Defendant shall deliver possession of the land, in dispute, as owner to the Plaintiff whose title in respect thereof shall be deemed to have accrued to him from the date of such deposit. The Plaintiff has to pay ad valorem Court-fee on a sum of Rs. 8,000/-. He had paid a Court-fee of rupees two only The deficiency in the Court-fee will be made good within a period of one month from today as discussed under issue No. 3 above otherwise the plaint will be deemed to have been rejected Decree sheet be prepared accordingly and the file be consigned to the record room.

It is the common case of the parties that the Court-fee was paid within the time allowed and the pre-emption money was also deposited before the date fixed. In appears, the learned District Judge, Ambala, affirmed the findings of the trial Court, and, thus, maintained the decrees passed in favour of the Plaintiff. Dissatisfied with the same, the vendees filed the six appeals in this Court. The laid appeals were filed on January 27, 1981. They came up for motion hearing on March 23, 1981 when the same were got adjourned to April 27, 1981 However, the Learned Counsel for the Appellants vent on seeking adjournments. On October 6, 1981, it was stated at the bar at the time of the motion hearing that the Governor of Haryana had issued a notification dated September 24, 1981, whereby the property was exemoted from the operation of the Punjab Pre-emption Act. Thus, notice was issued in the appeals for November 3, 1981. It is apparent that the Appellants in anticipation of the issuance of the said notification went on getting adjournments. In any case, the aforesaid notification was challenged in this Court by way of writ petitions, in Civil Writ Petition No 4961 of 1981 (Avinath Chander v. The State of Haryana C.W.P. No. 4961 of 1981) and Civil Writ Petition No. 816 of 1982 (Ishar Singh v. The State of Haryana C.W.P. No. 816 of 1982), decided on August 23, 1982. Ultimately the above mentioned notification was quashed. The matter did not come to an end here. Another notification dated July 28, 1983, was issued and was published in the Haryana Government Gazette dated August 2, 1983, whereby the Governor of Haryana was pleased to declare that no right of pre-emption shall exist in respect of the sales made of the land included in the boundary of Ambala City Municipal Committee as notified by Haryana Government, Local Department, Notification No 1964-ICI-74(sic)5856 dated February 21, 1974 This notification was also challenged through a writ petition, Civil Writ Petition No 4206 of 1983 (Avinosh Chander v. The State of Haryana C.W.P. No. 4206 of 1983) decided on February 2, 1984. This notification was quashed by the Division Bench of this Court in the said writ petition. Thus, the basis on which the appeals were filed by the Appellants and admitted were no more available to them.

Faced with this situation, the Learned Counsel for the Appellants contended that after the decree in the trial Court was passed on October 1, 1980, the vendees got the order of ejectment dated October 3, 1980, against the Plaintiff and in execution thereof also got possession of the suit land ok October 11, 1980. Civil Miscellaneous Applications for producing the certified copies of the ejectment order dated October 3, 1980, passed against the Plaintiff, and the report of the delivery of possession, by way of additional evidence, were also moved in this Court. It is surprising that no such application was moved before the lower appellate Court though the documents sought to be produced as additional evidence at this stage did exist then also On the basis of the order of ejectment dated October 3, 1980, the Learned Counsel for the Appellants contended that since the ownership rights in the land will vest in the Plaintiff-pre-emptor after the preemption money was deposited as provided under Order XX Rule 14, Code of Civil Procedure, (hereinafter called the Code), and the ejectment order was passed earlier, the Plaintiff was no more entitled to the decree, on the basis of the right of preemption, which according to the Learned Counsel, came to an end the moment the ejectment order was passed. According to the Learned Counsel, the right of pre-emption must continue till the pre-emption money in pursuance of the trial Court decree was deposited and also at the time of the passing of the decree by the appellate Court. In support of this contention, the Learned Counsel relied upon the Full Bench judgment of this Court in Karnail Singh v. Jasbir Singh (1974) 76 P. L. R. 482. A contention was also raised that since there was deficiency in the payment of the Court-fee, no valid decree could be passed in favour of the Plaintiff-pre-emptor, and that the deficiency in the Court-fee made up subsequently, in accordance with the directions of the trial Court in the decree, was of no consequence. In any case, argued the Learned Counsel, before the deficiency in the Court-fee was made good on October 28, 1980, already the order of ejectment was passed against the Plaintiff-pre-emptor and, therefore the pre emption decree obtained by him on the basis of his tenancy was liable to be set aside.

After hearing the Learned Counsel for the parties, I do not find any merit in these appeals.

The Plaintiff-pre-emptor was required to maintain his qualifications upto the passing of the decree by the trial Court as held by the Full Bench of this Court in Ramji Lal v. The State of Punjab (1966) 68 P. L R. 345. It has been held therein that the pre-emptor in whose favour a preemption decree has been given in the first Court need not retain his superior right of preemption till the hearing of the appeal by the vendee In this view of the matter, any order of ejectment passed against the Plaintiff pre-emptor subsequently, was of no consequence as regards his superior right of pre-emption. Besides, it has been stated at the bar on behalf of the Plaintiff Respondent that the appeal against the said ejectment order is pending, which fact is not denied by the Appellants Be that as it may, the said order of ejectment is of no consequence, because in the present appeals, the trial Court had already passed the pre-emption decrees in favour of the Plaintiff before the coming into existence of the said ejectment order. Of course, Order XX Rule 14 of the Code inter alia provides that where the Court decrees a claim to pre eruption in respect of a particular sale of property and the purchase money has not been paid into Court, the decree shall specify a day on or before which the purchase-money snail be so paid and that on payment into Court of such purchase money, together with costs, if any, decreed against the Plaintiff, on or before the date fixed, the Defendant shall deliver possession of the property to the Plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but in case the said amount is not paid within the time allowed, the suit shall stand dismissed, but this provision does not help the case of the Appellants in any manner. As to when the ownership in the land vested in the Plaintiff-pre-emptor, was not relevant but the material date is the date when the suit was decreed in his favour on October 1, 1980. In pursuance of the said decree, the balance amount was to be paid on or before November 27, 1980, which was admittedly paid within the time allowed.

As regards the deficiency in the Court-fee, admittedly, the same was made up within the time allowed by the Court. Once the said deficiency is made up, then under the provisions of Section 149 of the Code, the document shall have the same force and effect as if such fee had been paid in the first instance. It is pertinent to note that in appeal, the learned appellate Court while discussing issue No. 3 found that the finding of the learned trial Court requiring the Plaintiff Respondent to pay the extra ad alorem Court fee and its actual compliance which the Plaintiff Respondent did is held to be redundant and issue No. 3 stands decided in favour of the Plaintiff-Respondent. Issue No. 3 was to the effect: Whether the suit has not been properly valued for the purposes of Court fee? Under the circumstances, the contention with respect to the deficiency in the Court-fee has no relevancy to contest the Plaintiff''s right of preemption at this stage.

The Learned Counsel for the Appellants strongly relied upon the Full Bench judgment of this Court in Karnail Singh''s case (supra), to contend that the vendees-Defendants were within their rights to defeat the right of the Plaintiff in any legal manner According to the Learned Counsel the said right could not be defeated even when the appeal was pending. In the said Full Bench case, the question debated was as to the stage of the proceedings in a pre emption, suit to which the provisions of Section 5 of the Punjab Pre-emetine Act, which inter alia provides that no right of pre-emption shall exist in respect of the sale of agricultural land being waste land reclaimed by the vendee, shall apply. It was held therein that in view of the provisions of Section 31 of the Punjab Pre-emption Act, the applicability of Section 5 has to be seen at the date of the ultimate decision of the case and not at the date of the institution of the suit. u/s 5(b) no time-limit is fixed upto which the waste land can be reclaimed by the vendee to defeat the suit of the pre-emptor. It was also held that Section 5(b) does not say that no right of preemption shall exist in respect of agricultural land being was to land if it is reclaimed by the vendee before the institution of the suit for pre-emption or till the date of decree passed by the trial Court or by the appellate Court. It was, in these circumstances, ultimately held that the vendee can defeat the suit of the pre-emptor by reclaiming the land even after the institution of the suit till the date of the decree passed by the trial Court or by the appellate Court. No such proposition is involved in the present cases. In these appeals, there is no question involved in regard to the improving of the status by the vendees so as to defeat the right of pre-emption of the Plaintiff pre-emptor. The question involved is: upto which time the Plaintiff-pro emptor is required to retain his qualifications, for which proposition, the ratio of the Full Bench judgment of this Court in Ramji Lal''s case (supra) is fully applicable.

In this view of the matter, all the appeals fail and are dismissed with costs. The C. Ms also stand dismissed.