Sobha Ram and Another vs Sunder Singh and Others

Chet Ram Thakur, J.—This appeal has been filed against the judgment and decree, dated 24th October, 1969, passed by the District Judge, Simla, dismissing the appeal of Sobha Ram against whom the Senior Subordinate Judge, Nahan, had passed a decree for possession of one-half of the land through pre-emption.

During the pendency of this appeal, Bahadur Singh pre- emptor died and an application, CM.P. No. 701 of 1971, was filed by the Appellants purporting to be one u/s 151 of the CPC read with Order 22 of the Code of Civil Procedure. It was averred therein that the deceased has left no son, daughter or widow. The only person who can claim to be the heir of the deceased is Chetu, who was the Defendant in the suit. Chetu Defendant-Respondent being the vendor himself cannot be termed as a legal representative of the deceased Respondent No. 1 for the purposes of the suit from which the appeal has arisen. Therefore, it was submitted that the suit filed by Bahadur Singh deceased has become infructuous as the appeal is in continuation of the suit and there is no person in whose favour the right to sue can be held to survive.

Sunder Singh filed a reply to the Civil Miscellaneous Petition claiming himself to be the legal representative of Bahadur Singh on the basis that Bahadur Singh had gifted some land in his favour in the year 1953 and further that he is his nearest surviving co-lateral next to Chetu Respondent. Further that the deceased had gifted some other land including the suit land also in his favour on 14 thAugust 1969, after the decree was passed by the trial Court. This application was dismissed on 1st May, 1972 and the objections of Sunder Singh were over-ruled. Thereafter Sunder Singh filed an application purporting to be one under Order 22, Rule 10 and 4 of the CPC read with Section 151 of the Code. It was averred that Bahadur Singh had got that possession of the land in suit in execution of the decree and thereafter he transferred his right, title and interest in the land by way of a registered gift-deed, dated 14th August, 1969, to the applicant, who has been in possession of the land since then as owner. In view of the fact that the applicant had been transferred all rights and interests in the land in dispute as well as the other land by the deceased Bahadur Singh and that the applicant being in occupation thereof as full owner, he was entitled to be allowed to resist the appeal filed against Bahadur Singh deceased and he, therefore, prayed that he be permitted to be made a Respondent in place of Bahadur Singh Respondent for continuation and proper adjudication of the matter in appeal in his capacity as an assignee as well as legal representative.

This application was also opposed by the Appellants who pleaded that the transfer is ineffective on their rights; that the transfer was hit by the principles of lis pendence; that due to the death of Bahadur Singh Plaintiff, who had filed the suit to exercise the right of pre-emption, the suit deserves to be dismissed and as such Sunder Singh has acquired no right, title or interest in the property in dispute and that Sunder Singh cannot claim to be the owner of the property. Sunder Singh has no right to resist the appeal or the application presented by the Appellants for dismissal of the suit due to the death of Bahadur Singh. In so far as this application is concerned, the same had been allowed, vide order, dated 17th July, 1972, by R.S. Pathak, C.J. and Sunder Singh was ordered to be brought on record by virtue of Order 22, Rule 10 CPC Now the question that requires determination is whether Sunder Singh, who has been brought on record as an assignee can pursue the right of pre-emption.

The learned Counsel for the Appellants contends that the right of pre-emption which was personal in Bahadur Singh had come to an end by his death and, therefore, Sunder Singh could not be permitted to pursue the right of pre-emption. On the basis of Ram Sahai v. Gaya and Ors. ILR 7 All 107 he urges that the sole object of the right of pre-emption is the exclusion of such strangers as are objectionable to the pre-emptive co-sharers of the vendor and the transfer of a decree in favour of a stranger would be defeating the very object of the right of pre-emption inasmuch as the transferee, of the decree may be as much a stranger as the vendee against whom the decree was obtained, or that the latter may be a pre-emptor of a lower grade than the pre-emptor who originally obtained the decree.

The same view as taken in the case cited above was followed in Mehr Khan and Mother v. Ghulam Rasul and Ors. AIR 1922 Lah 300. Bahadur Singh sought to pre-empt the land on the basis of his being a co-sharer with the vendor and Bahadur Singh by virtue of this sale of the property in favour of Sunder Singh, therefore, in a way has lost his right. If the pre-emptor himself had lost his right then a stranger to whom the property had been transferred could not have the right to pre-empt the same. The contention of the learned Counsel for the Respondents is that the decree had become final as soon as the Senior Subordinate Judge had decreed the suit in favour of Bahadur Singh. But this submission of his does not appear to be correct inasmuch as the decree was under challenge in appeal and, therefore, it could not be said to be final unless the appellate Court had either affirmed or reversed the same because an appeal is the re-hearing or continuation of the suit itself. In this behalf I may cite a Full Bench authority of the Punjab and Haryana High Court Kamail Singh and Ors. v. Jabir Singh and Anr. 1974 P.L.J. 226. In this authority it had been stated that an appeal is a continuation of the original proceedings and a re-hearing of the suit and that if the Petitioner wishes to dislocate the vendee it is he, therefore, who must show that the superior right to pre-empt which he had at the date of the sale continues to remain superior at all relevant times, i.e. even on the date of appeal.

Further this view finds support from Amarjit Kaur Vs. Pritam Singh and Others, when it says that "as an appeal is a re-hearing, it would follow that if the High Court were to dismiss the appeal, it would be passing a decree in a suit for pre-emption. Therefore, the only course open to the High Court was to allow the appeal and that is what the High Court has done. In other words, if the High Court were to confirm the decree allowing the suit for pre-emption, for, when the appellate court confirms a decree, it passes a decree of its own". Similarly in AIR 1941 5 (Federal Court) it has been held that once the decree passed by a court had been appealed against the matter became sub judice again and thereafter the appellate court has seisin of the whole case. In these circumstances it cannot be said that the decree had become final as soon as the same was passed by the Senior Subordinate Judge rather an appeal had been filed within limitation and the matter was again re-opened for hearing before the High Court and if the pre-emptor had transferred his right in the suit land along with other land by virtue of which he claimed the right of pre-emption as a co-sharer, he had lost that right and if he had lost that right then the present Respondent cannot contest the appeal before the Court. From all these authorities what follows is that the loss of the land as co-sharer whereunder he claims the right of preemption would entail in loss of the preemptory right by the Petitioner by transfer of this land along with other land to the Respondents Bahadur Singh had lost this right during the life-time by virtue of transfer then this right does not survive to Sunder Singh also who is a stranger as the right of pre-emption runs with the land and the Respondents being strangers cannot oust a person who is equally a stranger.

On the contrary, the learned Counsel for the Respondents urges that the death of the pre-emptor after the decree does not affect the right of pre-emption. He places reliance on Ganda Singh v. Bhan, vendor-Defendant for self and as representative of his brother Bansi Das deceased Plaintiff-pre-emptor (A.I.R. 1923 Lah 310) wherein, a single Judge had held that where the pre-emptor dies after the decree and pending the appeal, and the original vendor himself is his legal representative, the suit need not be dismissed on appeal. A pre-emption decree cannot be affected by anything which happens after it is made. But in view of Karnail Singh and others'' case (Supra) the appeal being a re-hearing of the suit it would necessarily mean that the decree passed by the trial Court is not final and it is only the decree passed in appeal which would be final and, therefore, if the pre-emptor has transferred his right during the pendency of the appeal then necessarily he loses his right to pre-empt the sale and the transferee will also have no right to enforce that right and according to a Full Bench decision of the Lahore High Court in Thakur Madho Singh and Anr. v. Lt. James R. R. Skinner and Anr. AIR 1941 Lah 433 the rule of lis pendens applies to pre-emption suits. Its effect on the acquisitions based on the transfer pendente lite consequently can arm the vendee with an effective weapon to destroy the pre-emptor''s superior claim. Therefore, this authority relied upon by the learned Counsel for the Respondents with great respect does not laydown the correct law in view of the latest Supreme Court authority on the point.

The next authority relied upon is Mirza Sadiq Hussain and Anr. v. Mohammad Karim and Ors. AIR 1922 Oudh 289. But this authority will also not assist the Respondents because in that case the transfer by gift by the pre-emptor was not made in favour of a stranger, but it was made in favour of his son. It is stated in the judgment at page 290 that it is settled law that a transfer by inheritance of the pre-emptor''s property, subsequent to the sale, which is to be preempted, transfers to the heir the right of pre-emption. Further on this authority says that a transfer of the pre-emptor''s property by sale to a stranger subsequent to the sale to be pre-empted does not transfer the right of pre-emption to the vendee.

The further authority is AIR 1930 195 (Oudh) . It also lays down that if a pre-emptor obtains a decree and transfers not the decree but the property which is the subject-matter of pre-emption the right of pre-emption is not lost, and the decree can be executed though execution will not be allowed to the transferee. This is also a single Judge authority and it also says that the right of pre-emption is not lost and he may execute the decree though execution will not be allowed to the transferee. Here in the instant case as is apparent from CM.P. No. 206 of 1972 Shri Bahadur Singh not only transferred the suit land but he also transferred the other land which he had in the joint khata as a co-sharer. So when the very basis of his right had been transferred then he lost his right. So, if the pre-emptor through whom this stranger claims the right has lost it then the stranger cannot enforce that right-as already stated above and in these circumstances this authority also will have no application to the facts of the present case.

It has also been contended by the learned Counsel for the Respondents that the alienee can continue the suit or that he can be added as a party as has been done by this Court and, therefore, the proper remedy against that order directing Sunder Singh to be added as a party under Order 22, Rule 10 CPC open to the party dissatisfied with such order is to prefer an appeal under Order 43, Rule 1(1) CPC and for this reliance is placed on Midnapore Zemindary Co. Vs. Naresh Narain Roy, That is true that an appeal can be filed but here the Appellants contend that the Respondent although he has been added cannot enforce or defend the decree passed by the Courts below in favour of Bahadur Singh because Bahadur Singh lost that right by virtue of the transfer not only the suit property but the other property also which he had along with Chetu vendor and on the basis of which he had that right to pre-empt the sale. So after having lost that right of pre-emption, the transferee cannot enforce that right.

The result is that the appeal succeeds and the judgment and decree passed by the Court below are set aside and the suit is dismissed with no orders as to costs.