JUDGMENT

RANGANATH MISRA, J. :— These two appeals by special leave are directed against two different judgments of the Punjab & Haryana High Court in suits for pre-emption. The facts of the two cases are different.

C. A. 639/85 :

2. In this Appeal the alienation was on November 22, 1972, by one Nathu and his wife Smt. Singari in favour of outsiders. Plaintiffs claimed possession of the property by way of pre-emption on the ground that they have superior rights being fathers brothers sons of Nathu covered under S. 15(1)(a), Thirdly of the Punjab Pre-emption Act, 1913. That claim was decreed so far as Nathus half share in the property was concerned and the claim as against the alienation of half share by his wife was rejected. The alienees appeal to the District Judge as also the High Court did not succeed.

3. A Constitution Bench of this Court in the case of Atam Parkash v. State of Haryana, (1986) 1 Scale 260, has recently held :

"There is, therefore, no reasonable classification and clauses First, Secondly and Thirdly in S. 15(1)(a) are, therefore, declared ultra vires the Constitution."

The result of this decision in Atam Parkashs case is that S. 15(1)(a) Thirdly is, and was not, available to the plaintiffs to base their claim of pre-emption upon. CA.639/85 has, therefore, to be allowed and the decree passed by the trial Court as upheld in the first and second appeals must be reversed. Plaintiffs suit for pre-emption has to be dismissed. Since the reversal is the outcome of a judgment delivered by this Court during the pendency of the civil appeal, we direct parties to bear their respective costs throughout.

C.A. 911/71 :

4. Sonu Ram, defendant 1, was the owner of about 9 bighas of agricultural properties in which Bachan Singh and Niranjan Singh, plaintiffs, claimed to be the cultivating tenants. Sonu Ram sold the property under a registered sale deed dated July 22, 1959. The tenant filed a suit on July 21, 1960, for a decree for possession by pre-emption. With effect from February 4, 1960, Section 15 of the Punjab Pre-emption Act, 1913 (the Act for short), was amended by Act 10 of 1960. Under the amendment, inter alia, a new clause was inserted in S. 15(1)(a), namely, "Fourthly" which reads as under :

"Fourthly, if the tenant who holds, under tenancy of the vendor the land or property sold or a part thereof."

5. The Amending Act brought in a new provision by way of Section 31 to the following effect :

"Punjab Pre-emption (Amendment) Act, 1960, to apply to all suits - No court shall pass a decree in a suit for pre-emption whether instituted before or after the commencement of the Punjab Pre-emption (Amendment) Act, 1960, which is inconsistent with the provisions of the said Act."

6. The trial Court as also the first appellate Court took the view that on the date when the sale took place the plaintiffs had no right of pre-emption and as such the claim was not maintainable. Before the High Court in Second Appeal the appellants placed reliance on the Constitution Bench decision of this Court in Amir Singh v. Ram Singh, (1963) 3 SCR 884. The High Court took the view that on the date of sale the plaintiffs had no right infringed though they had such right on the date of the suit. As one of the requirements of the law was that the plaintiffs to succeed in a suit for pre-emption should have a superior right of pre-emption on the date of sale also the plaintiffs claim could not be decreed. The High Court, therefore, upheld the decree of the courts below.

7. We have heard learned counsel for both the sides at some length and are inclined to agree with the submissions advanced on behalf of the appellants that all the three have gone wrong in dismissing the claim. Gajendragadkar, J. (as he then was) who spoke for the Constitution Bench in Amir Singhs case categorically held :

"It is, however, urged that the law of pre-emption requires that the pre-emptor must possess she right to pre-empt at the date of the sale, at the date of the suit and at the