Pre-emption suit - Any improvement, otherwise than through inheritance or succession, made in the status of a vendee defendant after the institute of a suit for pre-emption; Shall not affect the right of pre-emption of plaintiff in such suit.

Viney Mittal, J.

1. The vendees are the appellants before this Court who have lost concurrently in a suit for pre-emption filed by the plaintiff-respondent.

2. Plaintiff Himta Ram filed a suit for pre-emption on December 14, 1989 claiming a right of pre-emption with regard to land measuring 32 kanals which had been sold by Smt. Shakuntla Devi, widow of Bahadur Singh, to Krishan Lal and Bhagwan Singh through a registered sale deed dated December 15, 1988 for a consideration of Rs. 1,17,000/-. The plaintiff claimed that 20/32 shares had been sold in favour of defendant No. 1 Krishan Lal, whereas, 12/32 shares had been sold in favour of defendant No. 2 Bhagwan Singh. It was further claimed by the plaintiff that although the actual price was fixed at Rs. 80,000/- but the consideration had been shown as Rs. 1,17,000/-. The plaintiff claimed that he was a co-sharer alongwith Shakuntla Devi in the joint Khata and Khewat and, therefore, had a preferential right to purcahse the land. It was also claimed that the defendants were strangers and had no concern with the suit land and, therefore, the plaintiff had a superior right to purchase the same.

3. The suit was contested by the defendants. They took up various technical pleas. On merits of the controversy, it was claimed that the plaintiff was not a co-sharer of the suit land. It was further pleaded by the defendants that after purchase they had made improvements in the suit land and had raised construction also by raising a room. It was further pleaded that they had improved their status by purchasing some other land from Shakuntla Devi through a registered sale deed dated May 2, 1989 and having improved their status and having become co-sharers, the plaintiff had no preferential right to preempt the sale in favour of the defendants.

4. The suit filed by the plaintiff was decreed by the learned trial Court. It was held by the learned trial Court that the plaintiff was a co-sharer alongwith Shakuntla Devi and as such had a right of pre-emption. The sale was held to be for a consideration of Rs. 1,17,000/-. Although it was held that the sale deed Ex.D3 dated May 2, 1989 had been executed by Shakuntla Devi in favour of the defendants for a consideration of Rs. 1,21,312/-, but still even by the aforesaid improvement in their status by the defendant-vendees the right of the plaintiff could not be defeated by them. As a result of the aforesaid findings, the claim of the plaintiff was upheld.

5. The defendants took up the matter in appeal. The learned First Appellate Court reappraised the entire evidence and came to the identical conclusions as had been arrived at by the learned trial Court. The appeal of the defendants was also dismissed.

6. The vendees have now chosen to file the present Regular Second Appeal.

7. At the outset, it may be noticed that the present appeal was filed in the year 1995. A Full Bench of this Court in the case of Ghanpat v. Ram Devi, (1978)80 P.L.R. 1 (F.B.) had taken a view that in view of the local law (Punjab Courts Act), the amended provisions of Section 100 of the Code of Civil Procedure, as amended in 1976, were not applicable to the second appeals filed in this Court. Accordingly, no substantial questions of law were framed nor the aforesaid regular second appeal was admitted on any such substantial questions of law. However, the Hon ble Supreme Court of India in the case of Kulwant Kaur and Ors. v. Gurdial Singh Mann (dead) by LRs and Ors. (2001-2)128 P.L.R. 492 (S.C.) has held that after the amendment of the Code of Civil Procedure in the year 1976, thereby amending Section 100, Section 41 of the Punjab Courts Act had become redundant and repugnant to the Central Act i.e. Code of Civil Procedure and, therefore, was to be ignored and, therefore, the second appeal shall only lie to this Court under Section 100 of the amended Code of Civil Procedure on a substantial question of law.

8. In these circumstances, during the course of hearing of the prese