Kishan Chand vs Sant Ram and others

R.S. Narula, J.—The facts giving rise to this regular second appeal briefly stated are as follows :

On 8th February, 1965, two brothers, Devi Dass and Chuni Lal, sold the land in dispute for a sum of Rs. 5,000/- to Fauja Singh and Chanan Singh respondents. Two suits were borught on 5th March, 1966, one by Kishan Chand son of Chuni Lal, and the other by Sant Ram claiming a superior right of pre-emption being vendors'' father''s brother''s son. These two suits were not consolidated. In the suit filed by Kishan Chand, there was a compromise between the parties on 28th March, 1966, and the defendant-vendees conceded that Kishan Chand had a superior right of pre-emption. So he was granted a decree. A copy of that decree is Exhibit D-4.

The other suit filed by Sant Ram remained pending. In view of the fact that Kishan Chand had obtained a decree in respect of the land in dispute, on his application Kishan Chand was impleaded as a defendant. On 31st March, 1967, this suit of Sant Ram was decreed qua one-half, i.e. the share of Chuni Lal. It was held that Kishan Chand had no right to pre-empt qua the share of Chuni Lal, because the property in dispute was a joint Hindu family property of Chuni Lal and Kishan Chand and that Kishan Chand had a superior right of pre-emption qua Devi Dass''s share.

Kishan Chand filed an appeal whereas Sant Ram filed cross-objections against the judgment of the trial Court. Both these were dismissed by the lower appellate Court on 8th May, 1969. Against this order, the present appeal (RSA 923 of 1969) has been filed by Kishan Chand.

The contention of the learned counsel for Kishan Chand is very simple. According to him, it was open to Fauja Singh and Chanan Singh, the original vendees, to transfer the property in dispute to Kishan Chand before the expiry of the period of limitation for filing a suit for pre-emption in recognition of the superior right of Kishan Chand and, in that case, Kishan Chand would have stepped into the shoes of the original vendees and any pre-emptor would have to show that he had a right superior to that of Kishan Chand. By filing a suit and obtaining the property by entering into a compromise in that suit, his position is the same as it would have been if the transfer had been made to him prior to the expiry of the period of limitation. According to him, it makes no difference whether this decree was obtained collusively, as urged on behalf of Sant Ram, or not. In the present suit, the position of Kishan Chand is not that of a rival pre-emptor but of a person who has obtained the property from the original vendees in recognition of his superior right. He is, therefore, very much in the position of a vendee. The whole matter being before this Court, if the appeal is dismissed, the result would be that this Court would be confirming the decree of the Courts below qua one-half share in favour of a pre-emptor which is prohibited u/s 3 of the Punjab Pre-emption (Repeil) Act, 1973, and as was held by a Bench decision of this Court in Shrimati Harbans Kaur v. Sardara Singh (1973) 75 PLR 554. I feel that the matter is of importance and There are other cases in which the same point of law arises and, therefore, I direct that this matter be decided by a larger Bench.

Regular Second Appeal No. 156 of 1971, (Sukhdev Kaur v. Angrez Kaur), was directed to be heard along with R.S.A. 923 of 1969. Though the facts in R.S.A. 156 of 1971 are slightly different, but the point of law which arises is the same. This appeal may also be heard by the larger Bench. All the counsel agree that the records are not necessary for the decision of these cases as the facts are admitted.

JUDGMENT

R.S. Narula, J.

The relevant facts leading to this reference have been succinctly set down in the order of Harbans Singh, C.J., dated January 10, 1974, and need not be repeated. The appellant has stepped into the shoes of the original vendee during the pendency of the pre-emption suit filed by Sant Ram respondent. His prayer in this appeal is to set aside the decree of the trial Court which was upheld by the lower appellate Court for possession of half of the property acquired by him from the original vendee in exercise of Sant Ram''s alleged superior right of pre-emption. The dismissal of this appeal would result in upholding, and consequently passing, a decree for possession in a pre-emption suit which is prohibited by the Punjab Pre-emption Act (11 of 1973) (hereinafter called the Act). It has already been held by a Division Bench of this Court (Harbans Singh, C.J. and B.R. Tuli, J.) in Smt. Harbans Singh v. Sardara Singh, that since a decree for pre-emption cannot be passed by any Court after the date of coming into force of the Act, that is after April 9, 1973, a vendee''s appeal against such a decree passed by the Court below has to be accepted by this Court in order to comply with the provisions of the Act as the dismissal of such an appeal would result in a decree being passed by this Court allowing a claim for pre-emption. We are bound by the Division Bench judgment in Smt. Harbans'' Kaur''s case (supra). The learned counsel for the plaintiff-pre-emptor-respondent, however, submits that the law laid down in Harbans Kaur''s case applies only'' to an appeal by the original vendee and not to an appeal filed by a transferee from a vendee. He lays particular emphasis on the fact that Kishan Chand appellant himself had obtained possession of the property in question by compromise in a suit for pre-emption filed by him in respect of the same sale which Sant Ram respondent sought to pre-empt. In our opinion none of these two facts makes any difference to the legal position. The pre-emption decree in favour of Kishan Chand is not under appeal before us. That has already been executed and fully satisfied. That decree is not only a matter of history. It is important to remember that, irrespective of who is the appellant before this Court, the Act enjoins on this Court the legal duty to ensure that no decree is passed by this Court (or by any other Court) in a pre-emption suit allowing a claim for pre-emption or upholding the grant of such a claim after April 9, 1973. We have in these circumstances no choice, but to allow this appeal and to dismiss the suit of the plaintiff-respondent in respect of the half share in the property in question for which the decree for possession in exercise of his right of pre-emption was passed by the lower appellate Court.

The cross-objections of Sant Ram plaintiff-respondent, wherein a claim is made for decreeing his pre-emption suit in respect of the other half of the property must concededly fail straightaway.

For the foregoing reasons, we allow this appeal, but dismiss the cross-objections and, as a result, dismiss the plaintiff-respondent''s pre-emption suit in toto leaving the parties to bear their own costs throughout.