Khazana Ram vs Surjan Singh and Others

V.P. Gupta, J.—This is a Defendant''s appeal against the judgment and decree, dated 4th December, 1981 of District Judge, Hamirpur, by which the appeal of the Appellant was dismissed and the judgment and decree, dated 28th February, 1977, passed by the Sub-Judge, Hamirpur, decreeing the suit of the Plaintiff-Respondent was affirmed.

The facts, in brief, are that Arjan Singh son of Seehanu sold 3 kanals 10 marlas of land situate in Tika Aghar to Khazana Ram and others Defendants for a consideration of Rs. 1,500/-by a registered sale deed, dated 25th December, 1970.

Surjan Singh real brother of the vendor filed a suit for pre-emption in the Court of Sub-Judge, Hamirpur, on 14th December, 1971, claiming that he had a superior right of preemption and that the sale price was not paid or fixed in good faith and that the Plaintiff was entitled to pre-empt the sale on payment of the market value of the property. The suit was contested by the Defendants-vendees and on the pleadings of the parties the following issues were framed:

Whether the Plaintiff has a superior right of preemption? OPP.

Whether the land in suit has been reclaimed by the Defendants? If so, to what effect? OPD.

Whether the Plaintiff is estopped by act and conduct from filing the suit? OPD.

Whether the sale price was actually paid and fixed in good fath? OPD.

If issue No. 4 is not proved, what was the market value of the land at the time of impugned sale? OP Parties.

5-A. Whether the Defendants have spent for stamps and registration charges, if so, how much? OPD.

5-B. In case of decree whether the Defendants are entitled for any compensation for improving the land in suit, if so, to what amount? OPD.

Relief.

The Sub-Judge, Hamirpur, vide his judgment and decree, dated 28-2-1977, decided issues Nos. 1, 3 and 5-B in favour of the Plaintiff. On issue No. 2 it was held that the Defendants had reclaimed 4 marlas of land and the Plaintiff was not entitled to this 4 marlas of land, the price of which came to approximately Rs. 88/-. Issue No. 4 was decided in favour of the Defendants and on issue No. 5-A it was held that the Defendants are entitled to Rs. 100/- on account of stamp and registration expenses. No decision was given on issue No. 5 in view of the decision on issue No. 4. As a result of these findings the Plaintiff''s suit for pre-emption with respect to 3 kanals 6 marlas of land was decreed subject to payment of Rs. 1512/- by the Plaintiff to the Defendants. The Defendants feeling aggrieved filed an appeal with the District Judge, Hamirpur, and in the appeal the findings on various issues were not agitated. Before the learned District Judge the Defendants only contested the right of the Plaintiff for preemption on the basis that the Defendants are Lohars and Scheduled Castes by virtue of the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act (108 of 1976) which came into force on 27-7-1977 by Government notification No. S. 8.589(E), dated 27-7-1977, published in Gazette of India. The Defendants claimed that the property sold in favour of Scheduled Castes could not be pre-empted due to the notification issued u/s 8(2) of the Punjab Pre-emption Act (hereinafter called the Act). The District Judge did not agree with the contention of the Defendants and dismissed the appeal on 4th December, 1981.

Shri Ramesh Chand Sood, the learned Counsel for the Defendant-Appellant contended that by virtue of the notification issued u/s 8(2) of the Act, the property sold in favour of the Scheduled Caste cannot be pre-empted. He contended that the pre-emptor must retain his qualification to pre-empt the sale (a) on the date of the sale; (b) on the date of institution of the suit; and (c) on the date of the final decree. He referred to Section 31 of the Act and contended that the approach of the learned District Judge is erroneous and that by decreeing the Plaintiff''s suit the District Judge has acted in violation of the statutory provisions of Section 31 of the Act.

Shri Yoginder Paul, Advocate, appearing on behalf of the Respondents contended that Act No. 108 of 1976 can only be made applicable from 27-7-1977 and that it is not retrospective. It was contended that the rights already acquired by pre-emptors prior to 27th July, 1977, are taken away by this Amendment Act and that the approach of the learned District Judge is correct.

I have considered the contentions of the learned Counsel for the parties.

Section 8 of the Act reads as follows:

"8. State Government may exclude areas from pre-emption.

(1) xx xx (b) The State Government may declare by notification that in any local area or with respect to any land or property or class of land or property or with respect to any sale or class of sales no right of pre-emption or only such limited right as the State Government may specify, shall exist.

By Punjab Act No. 10 of 1960, amendments were incorporated and some Sections were added, substituted, altered or omitted in the Act. Now Section 31 of the Act reads as follows:

To apply to all suits-

No Court shall pass a decree in a suit for pre-emption whether instituted before or after the commencement of the Punjab Pre-emption (Amendment) Act, 1960 even in the State (Union Territory) of H.P. which is inconsistent with the provisions of the said Act.

It is admitted that a notification u/s 8(2) of the Act had been issued in 1962 to the following effect:

In exercise of the powers conferred by Sub-Section (2) of Section 8 of Punjab Pre-emption Act, 1913, the Governor of Punjab is pleased to declare that no right of pre-emption shall exist with respect to urban and village immovable property as well as agriculture land purchased after 31st March, 1961, by any member of the Scheduled Castes mentioned in Part X of the Schedule to the Constitution (Scheduled Caste) Order, 1950.

The property in dispute is situate in Hamirpur tehsil of Kangra district which was a part of Punjab prior to 1st November, 1966. Due to the enactment of Section 5 of the Punjab Reorganisation Act, 1966, District Kangra was included in the Union Territory of Himachal Pradesh, but the laws applicable to Punjab remained to be applicable to this area.

On 25th January, 1971, the State of Himachal Pradesh came into existence and all the areas of the Union Territory of Himachal Pradesh became part of the State of Himachal Pradesh.

As per First Schedule, the Lohars of the merged areas were not included in the list of ''Scheduled Castes'' and, therefore, by virtue of the Punjab Re-organisation Act or State of Himachal Pradesh Act, 1970, the Defendants could not be deemed to be members of ''Scheduled Castes''.

Now by virtue of Act No. 108 of 1976 (which came into force from 27th July, 1977) Lohars have been included in the list of ''Scheduled Castes''.

Thus the Defendants were not included in the list of ''Scheduled Castes'' at the time of the sale or at the time of the institution of the suit or at the time of passing of the final decree by the Sub-Judge, Hamirpur.

The only question which remains to be decided is as to whether the Defendants who are now included in the list of ''Scheduled Castes'' can defeat the claim of the Plaintiff on the ground that the Plaintiff has lost his right of pre-emption at the stage of the final decree in the appellate Court.

There is no dispute that an appeal is continuation of the suit (original proceedings) and a rehearing of a matter. It is also now a settled law that a pre-emptor has to retain his qualifications till the passing of the final decree. If that is the position then naturally at the time of the passing of the final decree the pre-emptor has definitely lost his right of pre-emption as the Defendant is now a member of the ''Scheduled Caste''. In these circumstances, if any decree is allowed to be passed in favour of the Plaintiff then it will be against the provisions of the Act. The right of pre-emption is a weak right and the vendee can defeat the same by all legitimate means.

If Sections 8 and 31 and other Sections of the Act are read together then it necessarily follows that no decree can be passed if it is against the provisions of Section 8(2) of the Act. In the present case, although there is nothing to show that Act No. 108 of 1976 is retrospective still one fact is clear that under Act No. 108 of 1976, the Defendants do fall within the ambit of "Scheduled Castes" as are described in the First Schedule of this Act and from 27th July, 1977, they are to be deemed to be Scheduled Castes. By virtue of the notification of 1962 (already re-produced) the sale in favour of the Scheduled Castes is not pre-emptible and this notification was issued u/s 8(2) of the Act. In these circumstances if a sale had been made in favour of the Defendants after 27th July, 1977, or suit had been filed after 27th July, 1977, then the same could very easily be defeated on the ground that the sale is in favour of a member of the ''Scheduled Caste''. My view finds support from the Supreme Court judgment in Bhagwan Das (Dead) by Lrs. and Others Vs. Chet Ram, wherein their Lordships approved the observations made by the Full Bench in Thakur Madho Singh and Anr. v. Lt. James R.R. Skinner and Anr. AIR 1941 Lah 433, and held:

A vendee could defeat the right of a pre-emptor by improving his status at any time before the passing of the decree. The right of pre-emption is a weak one and is liable to be defeated by all legitimate means at the instance of a vendee against whose conduct an inroad is being attempted by the pre-emptor. The vendee is on the defensive and is entitled to arm himself with a shield in order to protect his right. The pre-emptor is an aggressor and as he wishes to dislocate the vendee he must show that the superior right of preemption which he had at the date of the sale continued to remain superior at all relevant times: vide Faiz Mohammad v. Fajar Ali Khan ILR (1944) 25 Lah. 473 : AIR 1944 Lah. 172 (FB). In the latest Full Bench decision of the Punjab High Court in Ramji Lal Ram Lal and Another Vs. State of Punjab and Others, the rule that a pre-emptor must maintain his qualification to pre-empt upto the date of the decree was recognised as well a settled.

In this case, the pre-emptor was a tenant of the land and had a right of pre-emption at the time of sale but subsequently he lost his tenancy rights due to eviction. The Supreme Court held that as the pre-emptor had lost his tenancy rights after the sale, therefore, the pre-emptor''s suit could not be decreed. Hence in view of the above discussion, I hold that the Plaintiff has lost his right of pre-emption with respect to the present sale.

In view of the above discussion, the present appeal is accepted, the judgment and decree of the learned District Judge is set aside and the Plaintiff''s suit for pre-emption is dismissed.

The parties are left to bear their own costs.