Parbhati vs Bhoop Singh and another

N.K. Kapoor, J.—This is defendant''s regular second appeal against the judgment and decree of the Additional District Judge whereby the appeal filed by the plaintiffs was accepted thus decreeing the suit as prayed for.

Plaintiff filed a suit for possession by means of preemption claiming a superior right of preemption being a cosharer in respect of sale deed dated 6.9.1985 executed by the vendor in favour of defendant.

The trial Court on application of evidence adduced by the parties came to the conclusion that the land has been partitioned and so the plaintiffs do not retain the status of cosharer. Accordingly, the Court held that plaintiffs do not possess a preferential right of preemption. Resultantly, the suit was dismissed.

Lower Appellate Court on reconsidering the matter came to the conclusion that the alleged order of partition in fact was set aside by the Collector and so the plaintiffs retained their claim to be a cosharer in the joint holding and so decreed the suit subject to the plaintiffs'' depositing the decretal amount less zare panjam amount already deposited by him, failing which the suit of the plaintiffs was deemed to have been dismissed.

Appeal was admitted and the parties were however ordered to maintain status quo regarding actual physical possession as it exists at the spot. Subsequently it came to notice that in fact the plaintiffs have already taken possession of the land on the basis of judgment and decree of the lower appellate Court. So, the earlier order of status quo was vacated and it was further ordered that the appellant can withdraw the entire preemption money deposited by the plaintiffs without prejudice to his right in the appeal.

Today the case came up for consideration and without any elaboration the counsel for the appellant placed explicit reliance upon the decision of the Apex Court in Karan Singh and others v. Bhagwan Singh (dead) by L. Rs. and others, 1996(2) R.R.R. 105 : 1996 PLJ 89 for the view that in view of the Haryana Act No. 10 of 1995 right of cosharer to claim preemption under amended Act has been abolished. Thus, the appeal being in continuation of the original proceedings the respondentsplaintiffs ceased to have any right to preempt and so on this short ground the appeal merits acceptance.

Learned counsel for the respondents, however, argued that the rights of the parties were finally determined by the Additional District Judge, pursuance to which even the respondents have been put in possession. So, the subsequent change cannot take away the right of the parties which has already been crystallised.

I find this submission devoid of any substance. As per the judicial pronouncement of the Apex Court in Karan Singh''s case (supra), it has been held that amended provisions have to be kept in view while determining the rights of parties. The Court can take judicial notice of the change in law and is well within its right to mould the relief on the basis of rights ordered under the amended law. Thus, as per the amended provisions a cosharer has ceased to have a right of preemption. Consequently, I accept the appeal, set aside the judgment and decree of the lower appellate Court and dismiss the suit filed by the plaintiffs. Since the appellant had been permitted to withdraw the entire preemption money deposited by the plaintiffs, it is ordered that the appellant shall deposit the total amount withdrawn by him within one month from today i.e. upto 11.5.1996, failing which the appeal shall be deemed to have been dismissed.