Lakhmi vs Mahavir and another

Nirmal Yadav, J.—This is defendant''s second appeal against the judgment and decree dated 15.6.1982 passed by learned Sub Judgment Ist Class, Faridabad vide which suit filed by the respondent/plaintiff for possession by way of preemption was decreed, and also against the judgment and decree dated 11.3.1983 passed by learned District Judge, Faridabad, whereby the decree granted by the trial Court has been affirmed.

Earlier, this Court vide order dated 4.8.2004 accepted the appeal and set aside the impugned judgments and decrees in view of the decision rendered by the Apex Court in Atam Parkash v. State of Haryana and others, 1987 RRR 116 : AIR 1986 SC 859. The respondent/plaintiff challenged the order passed by this Court before the Hon''ble Supreme Court in Civil Appeal No. 301 of 2007 arising out of SLP No. 25897/25898 of 2004. The Apex Court remitted the matter to this Court. The operative part of the order reads as under :

"The matter is remitted to the High Court, which shall formulate substantial questions of law, if any and then deal with the matter. Needless to say if there is/are questions(s) of law, the appeal has to be dismissed. We express no opinion in that regard.

Appeals are allowed without any orders as to costs."

The brief facts of the present case are that Mahavir, son of Balbir, who was a minor, filed a suit for preemption through his mother on the ground that his father vide sale deed dated 21.5.1980 sold the land measuring 17 marlas for a sum of Rs. 3000/ to defendant No. 1 Lakhmi, without any notice to the plaintiff. It was pleaded that plaintiff being a son of the vendor had a preferential right of preemption as against the vendee, who is a stranger and, therefore, decree be passed in his favour. The suit was contested by defendant No. 1 Lakhmi stating that preemption money had not been deposited in time. It was further pleaded that the suit has been brought by defendant No. 2 vendor through the plaintiff. The suit land was sold by the defendant as karta of the family and therefore, the impugned sale is not preemptible. He also claimed compensation of Rs. 10,000/ on account of boundary wall and two rooms constructed by him after purchases of suit land. The trial Court after taking into consideration the pleadings of the parties, struck the following issues :

"1. Whether the plaintiff has got a preferential right to preemption ? OPP.

Whether the suit has been filed by the plaintiff in collusion with defendant No. 2 ? If so the what effect ? OPD.

Whether the suit land was sold by defendant No. 2 as karta of the Joint Family and as such the impugned sale is not preemptibale ? OPD.

Whether the defendant No. 2 is Lohar and the sale being a Muslim is not preemptible ? OPD

Whether the defendant/vendee has raised two pucca rooms and boundary wall around the site in dispute ? If so to what effect ? OPD.

Whether the defendant/vendee is entitled to the expenses of stamp and registration charges ? OPD.

Relief."

Issue No. 1 was decided in favour of the plaintiff. On issue No. 5, it was held that since the defendant has raised construction within one year after sale, therefore, he is not entitled to any compensation for the same. Accordingly, the suit was decreed. Since aggrieved, defendant No. 1 Lakhmi filed an appeal against the judgment and decree of the trial court. Before the 1st Appellate Court, learned counsel for the appellant/defendant conceded issue No. 1, as there was ample evidence to prove the relationship between the preemptor and the vendor and thus, only issue No. 5 was left before the Court for adjudication. After considering the pleadings of the parties, evidence on record, the 1st Appellate Court dismissed the appeal of the defendant.

Since aggrieved, the defendant has filed the present appeal. Learned counsel for the appellant argued that the Apex Court in Atam Parkash''s case (supra) has held that the classification contained in Section 15 of the Act with regard to kinsfolk right of preemption, based on consanguinity, is a relic of the feudal past and totally inconsistent with the Constitutional scheme, therefore, the clauses `First'', `Secondly'' and `Thirdly'' of Section 15(1)(a), `First'', `Secondly'' and `Thirdly'' of 15(1)(b), `First'', `Secondly'' and `Thirdly'' of 15(1)(c) and whole of Section 15(2) were held to be ultra vires the Constitution. The Apex Court found it difficult to uphold the classification on the basis of unity and integrity either of village community or family or on the basis of agnatic theory of succession. It was further observed that reduction of litigation do not seem to have any relevance to the right of preemption vested in the kinsfolk of the vendor. The observation of the Apex Court in Atam Parkash''s case (supra) are reproduced as under :

"13. We are thus unable to find any justification for the classification contained in Section 15 of the Punjab preemption Act of the kinsfolk entitled to Preemption. The right of preemption based on consanguinity is a relic of the feudal past. It is totally inconsistent with the constitutional scheme. It is inconsistent with modern ideas. The reasons which justified its recognition quarter of a century ago namely, the preservation of the integrity of rural society, the unity of family life and the agnatic theory of succession are today irrelevant. The list of kinsfolk mentioned as entitled to preemption is intrinsically defective and selfcontradictory. There is, therefore, no reasonable classification and clauses `First'', Secondly'' and `Thirdly'' of Section 15(1)(a), `First'', `Secondly'' and `Thirdly'' of Section 15(1)(b), Clauses `First'', Secondly'' and `Thirdly'' of Section 15(1)(c) and the whole of Section 15(2) are, therefore, declared ultra vires the Constitution.

We are told that in some cases suits are pending in various courts and, where decrees have been passed, appeals are pending in appellate Courts. Such suits and appeals will now be disposed of in accordance with the declaration granted by us. We are told that there are a few cases where suits have been decreed and the decrees have become final, no appeals having been filed against those decrees. The decrees will be binding inter parties and the declaration granted by us will be of no avail to the parties thereto."

Learned counsel for the appellant has raised certain questions of law. However, the only substantial question law to be considered in the present case is, Whether the regular second appeal deserves to be accepted in terms of the observations made by the Supreme Court in Para 14 of its judgment in Atam Parkash''s case (supra) ?

Learned counsel for the appellant argued that all the pending suits and appeals will have to be disposed of keeping in view the declaration granted by the Apex Court. However, the cases in which suits have been decreed and those decrees have become final by not filing appeals, such decrees will be binding inter parties and declaration granted by the Apex Court will be of no avail to the parities. Learned counsel further argued that in the present case, the decree was passed by the trial Court on 15.6.1982 and the appeal against the said judgment and decree was disposed of on 11.30.1983. Thereafter, the present regular second appeal was admitted in September 1983 and it has been pending since then. It is further argued that appeal is in continuation of the suit and, therefore, as per the observations of the Apex Court in Para 14 of the Atam Parkash''s case (supra), the respondent/plaintiff has no right to preempt the sale in respect of the suit land.

On the other hand, learned counsel for the respondent/plaintiff argued that decree dated 15.6.1982 was executed on 18.11.1983. The possession had also been delivered on the same date and execution petition was disposed of on 6.6.1984 on the basis of decree having been satisfied. Learned counsel further argued that the vendee has himself conceded before the 1st appellate Court that preemptor has a preferential right of preemption and, therefore, in view of the concession made by the vendee, the right of preemption cannot be reopened at this stage. It is further argued that the rights vested in a party on the date of filing or adjudication of suit cannot be taken away by any enactment until and unless such a legislation is retrospective in operation either expressly or by necessary intendment. The court cannot take into consideration a new law brought into existence during the pendency of litigation. In support of his arguments, learned counsel for the respondent referred to a decision of the Apex Court in Shyam Sunder and another v. Ram Kumar and another, 2001(3) RCR(Civil) 754 : AIR 2001 SC 2472. Such being the circumstances, the question is as to what is the effect of declaration granted by the Apex Court in Atam Parkash''s case (supra) holding the classification contained in Section 15 of the Act on the basis of kinsfolk right of pre emption based on consanguinity, to be relic of the feudal past and totally inconsistent with the constitutional scheme.

There is no dispute that the plaintiff had a preferential right to pre empt the sale made by his father on the date the suit was filed and at the time of passing of the decree. Even the said right existed till the disposal of the appeal by the 1st Appellate Court. However, the Apex Court declared such a right to be ultra vires the Constitution vide its judgment dated 27.2.1986. It may be seen that suit for possession was decreed on 15.6.1982 and appeal against the said judgment was also disposed of on 11.3.1983. Thereafter, the appellant/defendant approached this Court and filed the present regular second appeal, which was admitted on 29.3.1983. However, during the pendency of the regular second appeal, the decree was executed on 18.11.1983 and possession was also delivered to the plaintiff/respondent. The issue as to whether appeal is continuation of suit and amendment in Section 15 of the Act whereby the right of cosharer to preempt the sale has been taken away would affect the maintainability of the suit and right of a co sharer and secondly, whether the amending act has retrospective effect so as to affect the rights of the parties in litigation, was considered by the Constitution Bench of the Apex Court in Shyam Sunder''s case (supra). Their Lordship of the Apex Court after considering various judgments right from the year 1888 viz. Sakina Bibi v. Amiran and others, 1888 ILR (10) Allahabad 472, Apex Court'' judgment in Rikhi Ram and another v. Ram Kumar and others, 1975(2) SCC 318, etc. founded the following legal principles having emerged :

"1. The preemptor must have the right to preempt on the date of sale, on the date of filling of the suit and on the date of passing of the decree by the Court of the first instance only.

The preemptor who claims the right to preempt the sale on the date of the sale must prove that such right continued to subsist till the passing of the decree of the first court. If the claimant loses that right or a vendee improves his right equal or above the right of the claimant before the adjudication of suit, the suit for preemption must fail.

A. preemptor who has a right to preempt a sale on the date of institution of the suit and on the date of passing of decree, the loss of such right subsequent to the decree of the first court would not affect his right or maintainability of the suit for preemption.

A preemptor who after proving his right on the date of sale, on the date of filing the suit and on the date of passing of the decree by the first court, has obtained a decree for preemption by the Court of first instance, such right cannot be taken away by subsequent legislation during dependency of the appeal filed against the decree unless such legislation has retrospective operation."

From the above legal principles, it is clear that a preemptor, who claims a right to preempt the sale, must prove that such right continued to subsist on the date of passing of decree by the first court. If the preemptor is successful in proving that he has a right to preempt the sale on the date of institution of the suit or in the date of passing of the decree, loss of such right subsequent to the decree of the first court would not affect his right or maintainability of suit for preemption. In the present case, if is not disputed that decree dated 15.6.1982 passed in favour of the plaintiff/respondent had been executed on 18.11.1983 and possession was also delivered in pursuance thereof. The execution petition was disposed of on 6.6.1984. Even the vendee has also conceded the preferential right of the preemptor before the 1st Appellate Court. Since the vendee has conceded the preferential right of the preemptor and abandoned issue No. 1, which is of course, a mixed question of fact and law, it is not open for the appellant to go behind his own admission and reagitate the same issue in the Court of second appeal.

I am, therefore, of the view that mere pendency of the appeal would not attract applicability of ratio of judgment of the Apex Court in Atam Parkash''s case (supra), as substantive rights of the parties have already been determined and cannot be reopened at this stage. The preemptor has duly proved his right of preemption on the date of sale and thereafter on the date of filing of suit and subsequently, on the date of passing of the decree by the 1st Appellate Court. Such a right cannot be taken away by subsequent legislation during the pendency of the second appeal. The intention of observations made in Para14 of the Atam Parkash''s case (supra), is not to reopen the cases where decrees have been satisfied. Rather, in the aforesaid Para14, the Apex Court has itself clarified that where suits have been decreed and decrees have become final, such decrees will be binding inter parties.

Accordingly, there is not merit in the appeal and the same is hereby dismissed.