IMPORTANT POINT
Pre-emption - When defendant is co-sharer in the khewat, the suit is bad on account of partial pre-emption.

VINEY MITTAL, J.

1. This order shall dispose of two appeals being RSA Nos.2864 of 1994 and 2865 of 1994 as common questions of law and facts are involved in both the appeals.

2. For the sake of convenience, the facts are taken from RSA No.2864 of 1994.

3. The vendee-defendants have approached this Court through the present Regular Second Appeal.

4. A suit for pre-emption was filed by Rohtash Singh, plaintiff. It was claimed by him that he had purchased the land in khewat No.69 killa Nos. 17/1, 17/2 and 11/18 through two sale deeds dated February 10,1987 and June 20,1987 and, therefore, was a co-sharer in the khewat. On January 7, 1992 another co-sharer Sunheri sold 13 kanals 18 marlas of land to defendant- appellants. The said sale was sought to be pre-empted by pre- emptor Rohtash Singh by filing the present suit.

5. The suit was contested by the defendants. It was claimed that the plaintiff had no preferential right to purchase, inasmuch as, the defendants were also co-sharers in the suit land. Another objection was raised with regard to partial pre- emption.

6. The learned trial Court, on the basis of material available on record, held that the suit filed by the plaintiff was bad for partial pre-emption and that he had no preferential right to purchase the suit property, inasmuch as, the defendant- vendees were also co-sharers in the suit land. Consequently, the. suit filed by the plaintiff was dismissed.

7. The matter was taken up in appeal. The learned First Appellate Court re-appraised the entire evidence. It was held by the learned First Appellate Court that the defendants were not co-sharers in the land along with the pre-emptor Rohtash Singh, inasmuch as, they were not having share in the khewat and had merely purchased the land in rectangle No.11. Objection with regard to partial preemption was also rejected by the learned First Appellate Court. It was held that the suit was not required to be filed with regard to rectangle No.11 killa No.5/2 because the pre-emptor was not a co-sharer with respect to the aforesaid suit land. Consequently, the appeal filed by the pre-emptor was allowed and his suit was decreed.

8. The vendees have now approached this Court through the present Regular Second Appeal.

9. At this stage, it may be noticed that the present regular second appeal had been filed in the year 1994. A full Bench of this Court in the case of Ghanpat v. Ram Devi AIR 1978 Punjab & Haryana 137 had taken a view that in view of the aforesaid 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 question of law. However, the Hon’ble Supreme Court of India in the case of Kulwant Kaur and others v. Gurdial Singh Mann (dead) by LRs and others JT 2001(4) SC 158 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.

10. In view of the law laid down by the Apex Court in Kulwant Kaur’s case (supra), during the course of arguments, the following substantial questions of law were found to have arisen in the present regular second appeal:

(a) As to whether the learned First Appellate Court has mis-read the evidence available on the record to come to the conclusion that the defendant-appellants were not co-sharers in the land alongwith the pre-emptor?

(b) As to whether the suit filed by the plaintiff could be treated to be bad for partial pre-emption?

11. No one has chosen to appear on behalf of the respon