Ram Sarup vs Ajmer Singh and another

G.C. Garg, J.

Plaintiffappellant filed a suit for possession by way of preemption. The suit was dismissed by the courts below. Regular Second Appeal was, however, allowed by J.V. Gupta, J. on 20.8.1986 by observing that the plaintiff was a cosharer and entitled to preempt the sale. Special Leave Petition filed by the defendantvendee was allowed by the Supreme Court and the judgment and decree passed by this Court was set aside. The matter was remanded to this Court to record a firm finding on the question, whether the plaintiff was or was not a cosharer qua the property in question and thereafter apply law on the subject. The High Court was further permitted to take additional evidence if required in that behalf. It is in this situation, that this appeal has come up for final disposal before me.

After hearing learned counsel for the parties, I am of the opinion that it is now not necessary to go into the controversy raised in the appeal, namely, whether the appellant herein is or is not a cosharer in the land in dispute. Even if it is held that the appellant is a cosharer in the land in dispute, his suit and consequently his appeal cannot be allowed in view of the amendment made in Section 15 of the Punjab Preemption Act by Haryana Amendment Act 10 of 1995 which has come into effect from 7.5.1995. The amending Act has substituted Section 15 of the Principal Act whereunder the right of preemption is vested now only in a tenant who holds the land under tenancy of the vendor. In view of amendment of the Punjab Preemption Act, suit of the plaintiffappellant cannot be decreed for possession by way of preemption as such a suit is now not maintainable at the behest of a co sharer. The Apex Court in Karam Singh and others v. Bhagwan Singh (Dead) by L.Rs and others, Judgments Today 1996(1) S.C. 618, has held as under :

"It is well settled law that the Court can take judicial notice of the change in law and mould the relief on the basis of the rights altered under the amended law. Though the appellate Court reversed the decree of the trial Court and granted to Bhagwan Singh the right of preemption, his entitlement to relief is at large when the matter is pending consideration before this Court. Therefore, the right to preemption should be available at all the stages including the final stage to affirm the decree. This Court would take judicial notice of the law prevailing as on the date of the order or judgment and apply relevant provisions of law prevailing on that day and mould the relief on the basis of that law. In view of the fact that Haryana Amendment Act, 10 of 1995 came into force w.e.f. July 7, 1995, the only person entitled under the amended law, to avail the right of preemption, is the tenant whose vendors had sold the whole or a part thereof to the third parties. It would, therefore, be clear that as on date, Bhagwan Singh has no right to claim preemption under the Act, as amended under the Amendment Act, 1995.

The appeals are accordingly allowed. The judgment and order of the High Court and the decree and judgment of the appellate Court are set aside."

For what has been observed above, the appeal stands dismissed. No costs.