Suresh Kumar vs Chanchal Singh and Another

M.S. Liberhan, J.—The short question referred to the Division Bench for decision is, whether the events subsequent to the passing of the

decree for pre-emption by the trial Court, can be taken note of by the appellant Authority while hearing the appeal. The said question has arisen in

a suit for preemption under the following admitted facts:

The plaintiff, hereinafter referred to as ''the respondents'' by way of pre-emption, claimed a superior right to pre-empt the sale, on the ground of

his being co-sharer in the land sold to the vendee-defendant, hereinafter referred to as the appellant. Though oral partition was set up by way of

defence yet finally it emerged that the mutation of partition was effected during the pendency of the appeal. It was observed that the partition was

finally affirmed on 21.4.1990 i.e. during the pendency of the appeal.

Pre-emption suit for possession was decreed by the trial Court. The lower Appellate Court affirmed the decree of pre-emption, inter alia

holding that the partition effected outside the Court can become valid only if it is brought to the notice of the revenue, authorities and same is

sanctioned by the said authorities. In continuity to above finding the Appellate Court observed, the alleged oral partition was not proved as the

same was not got sanctioned from the revenue authorities till day. Consequently, decree for pre-emption was affirmed.

In Regular Second Appeal learned Single Judge, finding that the observations made in Santokh Singh v. Lajja Ram 1986 2 P.L.R. 406, to the

effect that the subsequent events cannot be lost sight by the Court while determining the rights of the parties i.e. if the land was partitioned during

the pendency of the appeal, the co-sharer lost his right of pre-emption, were doubted in Lakhwinder Singh v. Balvinder Singh 1987 2 P.L.J. 505,

wherein it was observed that pre-emptor has to retain his right of pre-emption on the date of sale, institution of the suit and the decree of the trial

Court and not beyond that, referred the matter to a Division Bench for adjudication.

We have heard the learned counsel for the parties at length. No substantial arguments have been addressed at the bar as to when the partition

came into being, when it was acted upon or when it was finally sanctioned by the revenue authorities. In view of the finding returned by the District

Judge, neither the private partition was reported to the revenue authorities, nor it was given effect to. Irrespective of the fact observed above

putting the case of the vendee at the highest pedestal the partition was sanctioned during the pendency of the appeal. Should notice of such a

partition be taken note of ?, the question which we have been called upon to answer.

Under the Punjab Pre-emption Act and Customary Pre-emption Law, historically and precedently by numerous Judicial pronouncements by

Hon''ble the Supreme Court and this Court as well entrenched principle of law established is to the effect, that in a suit for possession by pre-

emption, before the pre-emptor could succeed, he has to have a right of pre-emption on the date of sale, institution of the suit and the decree.

In Bhikha Ram v. Ram Sarup 1992 1 P.L.R. 49 (S.C.) that right of pre-emption of co-sharer was upheld observing:

On the consideration that if an outsider is introduced as a co-sharer in a property it will make common management extremely difficult and destroy

the benefits of ownership in common"".

For this purpose reference had been made to Bhau Ram Vs. B. Baijnath Singh, . It was further observed that the whole purpose of the right of

pre-emption as co-sharer in property was to make the common management convenient.

In our considered view on partition the very object for which the right of pre-emption is granted to the co-sharer becomes extinct and the

concept of preemption would loose its very object and impact if the right of pre-empt is allowed to continue even after partition of the land.

From the perusal of following precedents cited: Lakhwinder Singh v. Balvinder Singh 1987 2 P.L.J. 505. Amarjit Kaur v. Pritam Singh,5

Amarjit Kaur Vs. Pritam Singh and Others, ,6 Garikapatti Veeraya Vs. N. Subbiah Choudhury, 7 State of Bombay Vs. Supreme General Films

Exchange Ltd., ,8 Vitthalbhai Naranbhai Patel Vs. Commissioner of Sales Tax, M.P., Nagpur, ,10 Pasupuleti Venkateswarlu Vs. The Motor and

General Traders, ,11 Laxmi and Co. Vs. Dr. Anant R. Deshpande and Another, Sadhu Singh and Another Vs. Dharam Dev and Others, ,14

Commissioner of Wealth Tax, Bombay and Another Vs. Mrs. Kasturbai Walchand and Others, ,15 Mst. Kanchaniya and others Vs. Shiv Ram

and others, which has noticed the judgment in P. Venkateshwarlu''s case (supra) with approval Rikhi Ram v. Ram Kumar,16 1975 P.L.J. 331,

Didar Singh v. Ishar Singh,17 1984 P.L.J. 489, and Qudrat Ullah v. Municipal Board, Bareilly, 1974 (2) S.C.R. 539. The conspectus of law laid

down is as under :-

i) That on the theory of the appeal being in the nature of rehearing, it is well recognised that in moulding the relief to be granted in the case on

appeal, the Appellate Court is entitled to take into account and consider even the facts and events which have come into being after the decree

appealed against is passed.

ii) The Appellate Courts have the power not only to correct the error in the judgment but also of such disposition of the case as justice requires

unless bound by any statutory provisions to act in any other manner.

iii) The Appellate Authority is bound to consider any change either in fact or in law which has supervened since the judgment was delivered by the

trial Court. Reference may be made to Atterson v. State of Alabama, 19 19 (294) U.S. 600 at page 607. The principle is equal pari materia with

the powers of Appellate Courts in our country as well. The Hon''ble Supreme Court in Amarjit Kaur Vs. Pritam Singh and Others, , while

answering the question whether Appellate'' Court when it passes a decree confirming the decree for pre-emption, passed by the trial Court or the

lower Appellate Court, is passing a decree of pre-emption, observed, that the Appellate Court sitting in appeal against decree has seisin of the

whole case and the whole matter becomes subjudice again though for certain purposes i.e. execution of the decree is regarded as final and the

Courts below retain jurisdiction. Court of appeal shall have the same powers and shall perform as nearly as may be the same duties as are

conferred and imposed on Courts of original jurisdiction. It was further observed that bearing of an appeal is under the procedural law of the

country in the nature of a re-hearing. Consequently, the Hon''ble Supreme Court answered that the Courts of appeal are entitled to take into

account even the facts and events which have come into existence after the decree appealed against. It was further observed that the Appellate

Authority while passing a decree or affirming a decree passes a decree of its own.

The Hon''ble Supreme Court in Sadhu Singh v. Dharam Dev, 13 1980 P.L.J. 530 while interpreting the principle as stated earlier that in a suit

for pre-emption, pre-emptor should have right of pre-emption on the date of sale, institution of the suit and the decree noticed the fact that the

relationship of landlord and tenant came to an end during the pendency of the appeal, wherein suit for pre-emption was decreed on the ground of a

right of pre-emption to a tenant observed, that since the relationship of landlord and tenant came to an end before the decree of pre-emption was

made by the first Appellate Court, consequently no decree for pre-emption could be passed.

A decree challenged in appeal is re-opened and the Appellate Authority would re-hear the whole subject matter. When a decree is passed in

appeal, the decree passed by the trial Court merges in the appellate decree. Reference may be made to Sadhu Singh and Another Vs. Dharam

Dev and Others, , Amarjit Kaur Vs. Pritam Singh and Others, Commissioner of Wealth Tax, Bombay and Another Vs. Mrs. Kasturbai Walchand

and Others, .

The judgment of the Appellate Court substituting the judgment of the trial Court operates retrospectively. Reference may be made to Maru

Ram and Others Vs. Union of India (UOI) and Others, .

It has come to stand in the judicial world that an appeal is a continuance of the suit. It is rehearing. The suit, appeal and second appeal are in

fact nothing but steps in a series. The proceedings are all connected by in transit unity and are recorded as one legal proceedings. Reference may

be made to Garikapatti Veeraya Vs. N. Subbiah Choudhury, .

Keeping in view the above principles laid down in various judgments, we have no doubt that the requirement of maintaining superior right of

pre-emption does not come to an end at the time of passing of the decree by the trial Court. No statutory provisions of any law or any other

principle has been pointed out by which any support can be drawn for the contention that the rights of the parties stand putrefied on the date of

passing the decree by the trial Court itself. Nothing has been brought to our notice to assume such a situation nor has any embargo been pointed

out on the powers of the Appellate Authority against taking into account the facts, circumstances or events coming into being at the time of passing

the decree.

In view of the observations made above, we affirm the observations made in Santokh Singh v. Lajja Ram,1 1986 2 P.L.R. 406, that the

subsequent events cannot be lost sight of and a partition at any stage during the pendency of the proceedings for pre-emption would result in

loosing the right of pre-emption.

We would have remanded the case for a fresh decision to the Hon''ble Single Bench, but we find no need to do so since it is not disputed at

the bar that the partition did take place during the pendency of the appeal and the findings of the District Judge to this effect run as under:

.................Mutation had been sanctioned by the Assistant Collector, IInd Grade, on 21.4.1990, as evident from Copy Ex. C.2 of the extract of

the mutation register.

The partition stood recognised by the revenue authorities. Consequently, the pre-emptor lost the right of pre-emption. Thus, the suit for pre-

emption cannot be decreed on the ground of the respondents being co-sharer as he did not have right of pre-emption on the relevant date i.e. on

the date of passing the decree for preemption.

In view of the observations made above the question referred to is answered in the affirmative i.e. the Appellate Authority can take note of

subsequent events, facts and any change in law during, the pendency of the appeal before passing the decree. Consequently, the appeal is

accepted and the suit of the plaintiff pre-emptor is dismissed with no order as to costs.