Advocates:
Advocate Appeared:
For the Appellant :Mr. Ram Chander, Advocate
For the Respondent:Mr. Adarsh Jain, Advocate

JUDGMENT :

Alka Sarin, J.

The present regular second appeal has been preferred by the defendant-appellant aggrieved by the judgments and decrees passed by the Trial Courtand the First Appellate Court dated 11.11.1993 and 02.12.1994 respectively.

2. The brief facts relevant to the present lis are that the suit land was sold by Aktar Husain in favour of Habib Ahmed (the appellant herein) for a sum of Rs.8,000/- vide a registered deed dated 19.11.1991 (Ex. P-2). The said sale was sought to be pre-empted by plaintiff-respondent, namely, Abdul Rehman on the ground of being a co-sharer in the joint khewat and in that view he had a preferential right to pre-empt the sale and since no notice was given to him hence the suit was filed. The suit was contested by the defendant-appellant on the ground that the plaintiff-respondent was not a co-sharer in the property. He was further allowed to raise an additional plea that the plaintiff had raised a boundary wall on the land of his share after getting the same partitioned before the sale.

3. On the basis of the pleadings of the parties the following issues were framed:-

a. Whether the plaintiff has got superior right of pre-emption as against the defendant ? OPP

b. Whether the suit is not maintainable ? OPD

c. Whether the plaintiff has no locus standi to file the present suit ? OPD

d. Whether the defendant is entitled for special consts ? OPD

e. Relief.

4. The Trial Court decreed the suit holding the plaintiff-respondent as having a preferential right to pre-empt the sale. Aggrieved by the same an appeal was preferred which was also dismissed vide a judgment and decree dated 02.12.1994. Hence the present regular second appeal.

5. Learned counsel for the defendant-appellant would contend that the plaintiff-respondent was not a co-sharer in the joint khewat and hence the suit for pre-emption was not maintainable.

6. Per contra, learned counsel for plaintiff-respondent No.1 has contended that there was sufficient evidence on the record to show that plaintiff-respondent No.1 was a co-sharer in the joint khewat and that the suit property had not been partitioned.

7. I have heard the learned counsel for the parties.

8. Vide the 1995th amendment of the Punjab Pre-emption Act, the right of a co-sharer was taken away, however, vide the judgment of the Hon'ble Supreme Court in the case of Shyam Sunder &Anr. V/s Ram Kumar &Anr. [2001 (3) RCR (Civil) 754], it was held as under:-

'From the aforesaid decisions the legal position that emerges is that when a repeal of an enactment is followed by a fresh legislation such legislation does not effect the substantive rights of the parties on the date of suit or adjudication of suit unless such a legislation is retrospective and a court of appeal cannot take into consideration a new law brought into existence after the judgment appealed from has been rendered because the rights of the parties in an appeal are determined under the law in force on the date of suit. However, the position in law would be different in the matters which relate to procedural law but so far as substantive rights of parties are concerned they remain unaffected by the amendment in the enactment. We are, therefore, of the view that where a repeal of provisions of an enactment is followed by fresh legislation by an amending Act such legislation is prospective in operation and does not effect substantive or vested rights of the parties unless made retrospective either expressly or by necessary intendment. We are further of the view that there is a presumption against the retrospective operation of a statute and further a statute is not to be construed to have a greater retrospective operation than its language renders necessary, but an amending Act which affects the procedure is presumed to be retrospective, unless amending Act provides otherwise. We have carefully looked into new substituted section 15 brought in the parent Act by Amendment Act 1995 but do not find it either expressly or by necessary imp