The right of pre-emption as co-sharer must be maintained until the date of the decree of the Court of first instance, and a rival pre-emptor who has already exercised his right of pre-emption extinguishes the right of other pre-emptors.

JUDGMENT

Arvind Singh Sangwan, J. (Oral) - Challenge in this appeal is to the judgment and decree dated 31.10.2015 passed by the lower appellate Court, vide which the appeal filed by respondents No.1 & 2-plaintiffs was allowed and the judgment and decree dated 27.09.1993 passed by the Sub Judge 1st Class, Kaithal, dismissing the suit, was set aside.

2. It is pertinent to mention here that respondents No.1 & 2-plaintiffs filed an appeal and the same was also dismissed by the lower appellate Court vide judgment and decree dated 05.06.1996. Thereafter, they filed RSA-2393-1996, which was dismissed in limine on 17.10.1996. The respondents-plaintiffs filed SLP (Civil) No.7775 of 1997 before the Hon'ble Supreme Court and on 14.01.2002, the following order was passed: -

'That the judgment and order dated the 17th October, 1996 of the High Court of Punjab and Haryana at Chandigarh in R.S.A. No.2393 of 1996 be and is hereby set aside and R.S.A. No.2393 of 1996 be and is hereby restored to the file of the aforesaid High Court with the request to the said High Court to decide the same afresh in accordance with law."

3. Thereafter, RSA-2393-1996 was allowed on 03.07.2015 and the case was remanded back to the lower appellate Court. The observations made in the judgment dated 03.07.2015 read as under: -

'The plaintiffs thereafter filed present Regular Second Appeal which was initially dismissed on 17.10.1996 in limine. The matter was taken to the Apex Court by the plaintiffs-appellants and in view of the judgment of the Apex Court in Shyam Sunder and another Vs.Ram Kumar and anotherx 2001 (8) SCC 24 whereby the issue of retrospectivity was decided by the Apex Court and it was held that rights of the parties in the light of law of preemption as it existed on the date ofpassing of the decree had to be seen and the Appellate Court was not required to take into note the substituted Section 15 introduced by the amending Act. The SLP filed accordingly was allowed and the matter was remanded to this Court for fresh decision vide order dated 14.1.2002.

xxx xxx xxx

Even in view of the judgment of the Apex Court, the issue regarding right of a co-sharer to file a suit on the basis of a preexisting right which existed at the time of filing of the suit already stands decided in favour of the appellants.

In such circumstances, the question of law referred to above is answered in favour of the plaintiffs-appellants and the present Regular Second Appeal is allowed and the matter is remanded to the Court of District Judge, Kaithal for fresh decision on merits. The said appeal shall be decided by issuing notice to the concerned parties at the earliest preferably latest by 31st March, 2016."

4. (This Court is not in agreement with the aforesaid observations, in view of law referred to in the later part of this judgment, as right of a co-sharer is to be maintained till passing of the judgment by the Court of first instance).

5. What is held in Shyam Sunder's case (supra) is that if the suit of pre-emption is decreed by Court of first instance and during pendency of appeal, the amendment came in existence, the right of pre-emptor survives, However, if the suit is dismissed by Court of first instance, the right of preemptor do not survive before the Appellate Court.

6. Brief facts of the case are that respondents No.1 & 2-plaintiffs filed a suit for possession by way of pre-emption qua 04 kanals of land claiming superior right of pre-emption as co-sharers. The case set up by the plaintiffs is that they are co-sharers in the joint khewat of land in dispute, out of which defendants No.3 to 7 had sold land measuring 04 kanals 01 marla representing 80/120572 shares out of unpartitioned land to vendees-defendants No.1 & 2 with all rights appurtenant thereto including the right of passage, irrigation etc. vide registered sale deed dated 05.03.1990 for a consideration of Rs.20,000/-. It is also stated in the plaint that though there is a recital regarding handing over actual phy