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PUNJAB & HARYANA HIGH COURT
D.K.Mahajan, Bal Raj Tuli and Pritam Singh Pattar JJ.
Karnail Singh
Versus
Jabir Singh
Second Appeals No. 560 of 1961,1261 of 1961,
Decided On : MARCH 1, 1974
PRE-EMPTION - SALE OF AGRICULTURAL LAND - WASTE LAND RECLAIMED BY VENDEE - RIGHT OF PRE-EMPTION - APPLICABILITY OF SECTION 5 OF PUNJAB PRE-EMPTION ACT - TIME-LIMIT FOR RECLAMATION - INTERPRETATION OF SECTION 31 OF THE ACT - EFFECT OF AMENDMENT ACT NO. 10 OF 1960 - RETROSPECTIVE OPERATION - DECREE INCONSISTENT WITH AMENDED ACT - PRE-EMPTOR'S RIGHT TO PRESERVE RIGHT UPTO DATE OF DECREE - RELEVANCE OF DATE OF SUIT OR DECREE FOR DETERMINING APPLICABILITY OF SECTION 5.
Fact of the Case:
The plaintiff, a minor son of the vendor, filed a suit for possession by pre-emption of the land sold by his father to the defendants. The defendants pleaded that the plaintiff was estopped from filing the suit and claimed Rs. 10,000 on account of the improvements made by them on the land after the sale. They also pleaded that after the sale, the Punjab Pre-emption Act was amended and this sale is not pre-emptible under the provisions of Section 5 as amended. The trial court decreed the suit for possession by pre-emption of the land in suit on payment of Rs. 21,685. On appeal, the lower appellate court affirmed the decision of the trial court on all issues except issue No. 7, on which it held that the vendees had reclaimed 5 Khasra Nos. 1071 to 1075 measuring 40 Kanals before the institution of the suit, and therefore, the suit for preemption regarding these five khasra numbers was not maintainable in view of the provisions of Section 5, as amended, of the Punjab Pre-emption Act and the decree of the trial court regarding these five khasra numbers was set aside and the suit of the plaintiff was dismissed. The plaintiff filed Regular Second Appeal No. 1221 of 1961 alleging that the decision of the lower appellate court on issue No. 7 was wrong and incorrect and it may be set aside and the decree passed by the trial court in his favour may be restored. The vendees filed Regular Second Appeal No. 560 of 1961 alleging that the decision of the lower appellate court was wrong and incorrect and it may be set aside and the suit of the plaintiff may be dismissed in toto.
Finding of the Court:
The court held that in view of the provisions of Section 31 of the Punjab Pre-emption Act, the applicability of Section 5 (b) of that Act has to be seen at the date of the ultimate decision of the case and not at the date of the institution of the suit. Under Section 5 (b), no time-limit is fixed upto which the waste land can be reclaimed by the vendee to defeat the suit of the pre-emptor. Further, Section 5 (b) does not say that no right of pre-emption shall exist in respect of agricultural land being waste land if it is reclaimed by the vendees before the institution of the suit for pre-emption or till the date of decree passed by the trial Court or by the Appellate Court. The vendee, therefore, can defeat the suit of the pre-emptor by reclaiming the land even after the institution of the suit till the date of the decree passed by the trial Court or by the Appellate Court.
Issues: 1. Whether the applicability of Section 5 of the Punjab Pre-emption Act should be seen at the date of the suit or at the date of the ultimate decision of the case? 2. Whether there is a time-limit fixed under Section 5 (b) of the Act upto which the waste land can be reclaimed by the vendee to defeat the suit of the pre-emptor? 3. Whether the vendee can defeat the suit of the pre-emptor by reclaiming the land even after the institution of the suit till the date of the decree passed by the trial Court or by the Appellate Court?
Ratio Decidendi: 1. The provisions of Section 31 of the Punjab Pre-emption Act, added by the Punjab Pre-emption (Amendment) Act No. 10 of 1960, are retrospective in operation, and therefore, the decree passed in favour of the respondents by the trial Court and affirmed by the High Court under the unamended section could not be sustained. 2. The retrospective operation of Section 31 necessarily involves effect being given to the substantive provisions of amended Section 15 retrospectively, and hence the rights which the respondents now claim under the amended provisions must be deemed to have vested in them at the relevant time, with the result that they are entitled, on remand, to ask for a decree passed on the basis of the said rights. 3. In view of the provisions of Section 31 of the Punjab Pre-emption Act, the applicability of Section 5 (b) of that Act has to be seen at the date of the ultimate decision of the case and not at the date of the institution of the suit. 4. Under Section 5 (b), no time-limit is fixed upto which the waste land can be reclaimed by the vendee to defeat the suit of the pre-emptor. 5. The vendee, therefore, can defeat the suit of the pre-emptor by reclaiming the land even after the institution of the suit till the date of the decree passed by the trial Court or by the Appellate Court.
Final Decision: Appeal No. 560 of 1961, filed by Karnail Singh and others, defendants-vendees, is accepted and the decree of the Additional District Judge dated April 1, 1961, passed for possession by pre-emption of the whole of the land in suit excepting 5 Khasra Nos. 1071 to 1075 is set aside and the suit for pre-emption filed by Jabbar Singh plaintiff is dismissed in toto. Appeal No. 1221 of 1961 filed by Jabbar Singh plaintiff is dismissed.
PRITAM SINGH PATTAR, J.
1. By this judgment, we shall dispose of the following two Regular Second Appeals, which are directed against the judgment dated 1-4-1961 of the Additional District Judge Karnal:-
(1) R. S. A. No. 560/1961-Karnail Singh and others V/s. Jabbar Singh.
(2) R. S. A. No. 1221/1961 - Jabbar Singh V/s. Karnail Singh and others.
Both these appeals came up for hearing before Hon ble Mahajan, J., and by order dated 27-8-1971, he directed that both the appeals may be laid before the Hon ble Chief Justice for constituting a Full Bench to decide the law point involved in these appeals. The following observations were made in the order dated 27-8-1971 of Mahajan J.:-
"The principal contention that has been advanced by the learned counsel for the vendees is that in view of Section 31, the applicability of Section 5 has to be seen at the date of the ultimate decision and not at the date of the suit. A contrary view to the contention urged has been taken in three decisions of this Court, Balwant Singh V/s. Kehar Singh, 1963-65 Pun LR 972; Madan Lal V/s. Dhan Raj, 1964 Cur LJ (Punj.) 343, and Tek Chand V/s. Sain Dass, 1967 Cur LJ (Punj and Har) 824. It appears to me that these decisions run contrary to the decision of the Supreme Court in Ram Sarup V/s. Munshi, AIR 1963 SC 553, wherein their Lordships approved the decision of this Court in Ram Lal V/s. Raja Ram, 1960-62 Pun LR 291. Apart from this, there is no time-limit fixed in Section 5 upto which the waste land can be reclaimed by the vendees. In my opinion, no artificial time-limit can be fixed and the proper approach would be that the applicability of Section 5 should be judged at the time when the decree is to be passed. As I hold a contrary view to the Division Bench decisions already referred to, it will be proper that these cases are settled by a Full Bench. The other points are not very complicated and it would be proper that the whole case is settled by the full Bench."
That is, how, these two appeals are before the Full Bench.
2 The facts of this case are that Ruhla Singh, defendant No. 1, owned land measuring 705 Kanals and 7 Marlas fully described in para No. 1 of the plaint and situated in the area of village Chanal Heri, Tahsil Thanesar, District Karnal (now District Kurukshetra) and he sold the same to Karnail Singh and others, defendants 2 to 10 for Rs. 21,160 on the basis of a registered sale deed dated 27-2-1958. Jabbar Singh plaintiff, who is the minor son of the vendor Ruhla Singh filed suit for possession by pre-emption of this land on payment of the sale price through his next friend on the allegations that his right of pre-emption is superior to that of the vendees, who are strangers. The defendants-vendees contested this suit. They did not admit that the plaintiff was the son of the vendor and had a superior right of pre-emption. In the alternative it was pleaded that the plaintiff and the vendor Ruhla Singh were members of the joint Hindu family and the land in suit belonged to the joint Hindu family and, therefore, the plaintiff had no right to sue for pre-emption. It was also alleged that the plaintiff is a member of the joint Hindu family and is owner of more than 30 standard acres of land, and therefore this suit is not competent. They averred that the plaintiff is estopped from filing this suit. They claimed Rs. 10,000 on account of the improvements made by them on this land after the sale in case decree was passed against them. They pleaded that after the sale, the Punjab Pre-emption Act was amended and this sale is not pre-emptible under the provisions of Section 5 as amended. In his replication, the plaintiff denied the allegations made by the vendees. It was pleaded that be and his father were governed by custom in matters of succession and alienation of property. On these pleadings at the parties, the following issues were framed by the trial Court:-
"(1) Whether the plaintiff has a preferential right to pre-empt?
(2) Whether
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