Hoshaiar Singh vs Mahender

V.K. Jhanji, J.—In this application, prayer made is to dispose of the appeal. It is contended that during the pendency of the appeal, by Act No. 10 of 1995 the right of co-sharers to pre-empt the land has been taken away and therefore, the appeal deserves to be allowed and suit of the plaintiffs is to be dismissed.

At the request of counsel, appeal is taken on Board for final disposal.

The appeal arises out of a suit filed by the plaintiffs for possession of suit land by way of pre-emption on the ground that they are co-sharers in the joint khata and have a superior right against the vendees who are strangers. On contest, trial court dismissed the suit of the plaintiffs qua khewat Nos 71 to 74 and decreed the same qua Khewat No. 75, but the first appellate court on reappreciation of evidence held the plaintiffs to be co-sharers having a superior right of redemption. It, thus, allowed the appeal of the plaintiffs and consequently, decreed the suit in toto. Hence, this second appeal by the defendants.

On going through the amendment and the two judgments of the Apex Court, namely, Karan Singh and others v. Bhagwan Singh (dead) by L.Rs and others 1996 PLJ 89 : 1996 (2) RRR (Civil) 105 (SC) and Ram Ji Lal and others v. Ghisa Ram etc. 1996 PLJ 191, I am of the view that the plaintiffs have no right to preempt the sale as under the Haryana Amendment Act No. 10 of 1995, a co-sharer no longer has a right to preempt the sale. As per the amendment, the only person entitled under the amended law to avail the right of pre-emption is the tenant, Since in this case, the claim of the plaintiffs is to pre-empt the sale on the basis of being co-sharers, suit itself is not maintainable. Accordingly, the appeal is allowed, judgment of the first appellate Court is set aside and that of the trial Court is restored with no order as to costs.

Appeal allowed.