Sunehra and Others vs Barham Parkash and Others

Jawahar Lal Gupta, J.—The defendant-appellants are aggrieved by the judgment and decree passed by the courts below by which the claim of the plaintiff-respondents for possession by pre-emption on the ground that they were co-sharers, has been up-held.

Mr. Sarin, learned counsel for the appellants submits that in view of the provisions of Punjab Pre-emption (Haryana Amendment) Act, 1995 (Haryana Act No. 10 of 1995), a co-sharer''s right to pre-empt a sale does not survive. Mr. R.S. Mittal, learned counsel for the plaintiff-respondents submits that in view of the plain language of the provision, it is clear that it is prospective and does not apply to cases wherein a decree for possession by pre-emption was passed by the trial court prior to July 7, 1995 when the provisions of Haryana Act No. 10 of 1995 had came into force.

The controversy in this case has been authoritatively settled by their Lordships of the Supreme Court in three decisions viz. Karan Singh and others, etc., Vs. Bhagwan Singh (Dead) by LRs. and others, etc.,, , Mukhtiar Ahmed Vs. Husan Bano (Smt) and Others, and Mansu Vs. Shadi Ram, . In view of these authorititative pronouncements, the contention raised on behalf of the plaintiff-respondents cannot be sustained.

Faced with this situation, Mr. Mittal submits that their Lordships of the Supreme Court have not considered the earlier decisions in Bhagwan Das (Dead) by Lrs. and Others Vs. Chet Ram, , State of Punjab Vs. Ramjilal and Others, and Rikhi Ram and Another Vs. Ram Kumar and Others, .

The contention of the learned counsel cannot be accepted. In Koran Singh''s case (supra), their Lordships have referred to the decision in Amarjit Kaur Vs. Pritam Singh and Others, and held that when an appeal against, a decree is pending, the court of appeal has seisin of the whole case. In any event, this court is bound by the judgment of their Lordships of the Supreme Court in a case wherein the provisions of the Haryana Act No. 10 of 1995 have been specifically considered and interepretted.

No other point has been urged.

In view of the above, the appeal is accepted. The judgment and decree passed by the courts below are set aside, and the suit of the plaintiff-respondents is dismissed. However, the plaintiff-respondents shall be entitled to withdraw such money as they may have deposited before the trial court. In the circumstances of the case, there will be no order as to costs.