Surja Ram vs Birbal and Others

K.C. Gupta, J.—This is a review petition filed by the respondents under Order 47 Rule 1 C.P.C. for review of the order dated 31.7.2000.

Briefly stated, the facts are that Sarvshri Hiru, Kashi, Manphool, Bishana, Moman, Smt. Mam Kauri, Kanda, Het Ram and Jamna of village Chakkan sold land measuring 45 kanals 16 marlas comprised in Khewat No. 303, Khatauni No. 443, Rect. 44 killa Nos. 8 and 9 (160)), 101/1 (216), 12 to 14 and Khewat No. 78 Khatauni No. 103 REct. No. 44 killa Nos. 15/1 (04) situated in village Chakkan by way of registered sale deed executed on 11.1.1977 and registered on 12.1.1977 to the respondents (defendants) for ostensible price of Rs. 38,000/. The appellant claiming himself to be cosharer in the khewat out of which the suit land had been sold filed a suit for possession by preemption. He further alleged that the suit land was sold for a sum of Rs. 27,000/ and the amount of Rs. 38,000/ was fictitiously shown in the order to defeat his right of preemption.

The respondents contested the suit and filed written statement. They pleaded that they had purchased the suit land by way of specific killa number A and not the share out of the joint Khewat and as such the appellant did not become a cosharer in the suit land so he has no right to file a suit for possession by way of preemption. They have further stated that they had purchased the suit land for Rs. 38,000/ and had also spent a sum of Rs. 2,000/ in improving the land besides incurring expenses on stamps and registration.

On the pleadings of the parties, the following issues were framed :

"1. Whether the plaintiff has a preferential right to preempt the sale ? OPP

Whether an amount of Rs. 38,000/ was fixed in good faith or was actually paid as sale consideration ? OPP

If issue No. 2 is not proved what was the value of the suit at the time of the sale ? OPP

Whether the defendants are entitled to stamp and registration charges ? OPP

Whether the defendants are entitled to an amount of Rs. 2,000/ as charges for improvement ? OPD

Whether the suit land cannot be subject of preemption ? OPD

Whether the defendants are entitled to special costs ? OPD

Relief."

The parties adduced their evidence. After hearing learned counsel for the parties, the trial Court dismissed the suit by holding under Issue No. 1 that the appellant had no preferential right to preempt the sale as no share had been sold out of the joint land but only specific killa numbers had been sold and as such he did not become a cosharer qua the suit land. Under Issue No. 2, it was held that the suit land was sold for Rs. 38,000/. Issue No. 3 was left undecided having become redundant. Under Issue No. 4, it was held that respondents had incurred Rs. 42,000/ on stamps and registration etc. Issues No. 5 and 6 were decided against the respondents as not pressed. Under Issue No. 7, it was held that there was no ground for awarding the special costs. Aggrieved by the said judgment and decree, the plaintiff filed appeal which was heard by the Additional District Judge, Sirsa and the same was dismissed vide judgment dated 4.9.1980.

Aggrieved by the said judgment, the plaintiff had filed the Regular Second Appeal, which was accepted by this Court vide order dated 31.7.2000.

However, on 5.9.2000, the respondents moved an application for review of the judgment dated 31.7.2000 on the ground that in the year 1995, Haryana Government, vide Amendment Act 10 of 1995 had amended the preemption Act and Section 15 of the Act was substituted with new amendment Section and accorded to the amended section, the right of preemption was only given to a tenant who holds under tenancy of the vendor or vendors the land or property sold or a part thereof. So, he prayed that the judgment be reviewed and the appeal be dismissed.

Notice of this review petition was issued to the counsel for the appellantSurja Ram, Shri P.S. Kadayan but he did not appear despite service. The amendment of the Punjab Preemption (Haryana Amendment) Act, 1955 has been effected vide notification dated 7.5.1995, which reads as under :

"1. This Act may be called the Punjab Preemption (Haryana Amendment) Act, 1955.

For Section 15 of the Punjab Preemption Act, 1913, the following section shall be substituted, namely :

"15. Right of Preemption to vest in tenant. The right of preemption in respect of sale of agricultural land and village immovable property shall vest in the tenant who holds under tenancy of the vendor or vendors the land or property sold or a part thereof."

Sd/ M.K. Bansal, Secretary to Government, Haryana, Legislative Department."

Therefore, according to this amendment, the right of preemption now in respect of sale of agricultural land and village immovable property vest in the tenant who holds under tenancy of the vendor/vendors the land or property sold or a part thereof i.e. the right of preemption of a cosharer has been taken away by this amendment. It has been observed by the Full Bench of the Hon''ble Supreme Court in Ramjilal and Others v. Ghisa Ram, 1996(2) Recent Revenue Reports 456 that the Court can take judicial notice of any law in an appeal as the appeal is a continuation of the suit. It has been further observed in it that since the preemption Act has been amended thereby disentitling the coowner to preempt the sale by another coowner to a stranger, then the appeal of the vendee has to be allowed in view of the change in law. To the same effect is the authority, Karan Singh v. Bhagwan Singh (Dead) by LRs., 1996(2) Recent Revenue Reports 105, wherein it was observed as under :

"Punjab Preemption Act, 1913, Section 15 Amendment in 1995 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 decree of trial Court and granted coowner 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 final stage to affirm the decree This Court would take judicial notice of the law prevailing as on the date of order or judgment and apply relevant provisions of law prevailing on that day and mound relief on the basis of that law Held, in view of the facts that Haryana Amendment Act 10 of 1995 came into force w.e.f. July 7, 1995 only person entitled under amended law to avail the right of preemption is the tenant whose vendors had sold whole or a part thereof to third parties Therefore, coowner has no right to claim preemption under the Act as amended under the amendment Act, 1995 Appeal allowed."

Similarly, it has been observed by this Court in Parkash Singh v. Shiv Dayal Singh, 1999(2) RCR (Civil) 31, that where a suit for possession of land by preemption has been filed by a cosharer, then cosharer has no longer any right of preemption of sale of agricultural land as per Haryana Amendment Act No. 10 of 1995 and only person entitled to the right of preemption is the tenant. Therefore, in view of the amendment and the aforesaid authorities, the appellantSurja Ram has no right of preemption on the basis of coowner/cosharer. Earlier, the amendment was not brought to the notice of this Court by counsel for the respondents and it was decided in favour of the appellantSurja Ram on the basis of Full Bench judgment of this Court reported as Bhartu v. Ram Sarup, 1981 PLJ 204. Hence there is a bonafide error.

Therefore, in view of the discussion above and in view of the power vested under Order 47 Rule 1 C.P.C., the judgment dated 31.7.2000 is reviewed and the Regular Second Appeal filed by Surja Ram is dismissed and the judgment passed by the trial Court as well as Appellate Court are affirmed.