judgment

VENKATARAMIAH, J.:- Respondents 5 to 7-Aji Ram, Tota Ram and Hari Chand are sons of one Kesaria. The suit land belonged jointly to Respondents 5 to 7. They sold it to Respondents 1 to 4 - Nathi Mal Kejriwal, Radhey Shayam Kejriwal, Smt. Daropdi Devi and Nagar Mal Kejriwal, who were strangers to their family for a consideration of Rs. 33,000/under a sale deed registered on 25-10-1971. The petitioners, who claimed themselves to be the sons and nephews of the vendors, instituted a suit in Civil Suit No. 466 of 1972 on the file of the Sub-Judge, Ist Class, Palwal for possession of the suit land on payment of Rs. 33,000/- claiming that they were entitled to the right of pre-emption in respect of the suit land either under clause First or Secondly of S. 15(l)(a) of the Punjab Pre-emption Act, 1913 (hereinafter referred to as the Act) as in force in the State of Haryana or under clause First or Secondly of S. 15(l)(b) of the Act. The learned Sub-Judge upheld the plea of the petitioners and decreed the suit for possession of the suit land against Respondents 1 to 4 who had purchased the suit land as well as against Respondents 5 to 7 who had sold it subject to the petitioners paying a sum of Rs. 36,642/- which included the consideration of Rs. 33,000/and interest thereon at 8 per cent per annum. The learned Sub-Judge further directed the petitioners to deposit the sum of Rs. 36,642/- minus the zare punjam amount on or before 3rd May, 1976 and that on their failure to deposit the said amount, he directed that the suit should be deemed to have been dismissed with costs. Aggrieved by the judgment of the learned Sub-Judge, Respondents 1 to 4 filed an appeal before the District Judge, Gurgaon in Civil Appeal No. 69 of 1976. The, appeal was dismissed. Against the judgment of the learned District Judge, Respondents 1 to 4 filed a second appeal before the High Court of Punjab and Haryana in Regular Second Appeal No. 1504 of 1977. That second appeal was taken up for hearing. on 2nd May, 1986. By that time this Court had delivered its judgment in Atam Prakash v. State of Haryana, (1986) 2 SCC 249 : (AIR 1986 SC 859) declaring clauses First, Secondly, and Thirdly of S. 15(l)(a), clauses First" Secondly, and Thirdly of S. 15(l)(b), clauses First, Secondly and Thirdly of S. 15(l)(c) and the whole of S. 15(2) of the Act as ultra vires the Constitution. Following the said decision the High Court allowed the second appeal and dismissed the suit since the provisions under which the petitioners claimed the right of pre-emption had been declared void by this Court. This petition is filed praying for special leave to prefer an appeal against the judgment of the High Court in the second appeal.

2. At the hearing of this Special Leave Petition the learned counsel for the petitioners contended that even though the petitioners were not able to claim the right of pre-emption under clauses First and Secondly of S. 15(l)(a) or clauses First and Secondly of S. 15(l)(b) by reason of the decision in the Atam Prakashs case, (AIR 1986 SC 859) (supra) they were entitled to claim the right of pre-emption under clause Fourthly in S. 15(l)(b), of the Act. Section 15(l)(b) reads thus :

"15. Persons in whom right of pre-emption vests in respect of sales of agricultural land and village immovable property. - (1) The right of pre-emption in respect of agricultural land and village immovable property shall vest -

(a) .........................................

(b) where the sale is of a share out of joint land or property and is not made by all the co-sharers jointly-

First, in the sons or daughters or sons or daughters sons of the vendor or vendors;

Secondly, in the brothers or brothers sons of the vendor or vendors;

Thirdly, in the fathers brother or fathers brothers sons of the vendor or vendors;

Fourthly, in the other co-sharers;

Fifthly, in the tenants who hold under tenancy of the vendor or vendors the land or property sold or a part thereof;

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