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PETITIONER:

JINDA RAM (DEAD) BY LRS.

Vs.

RESPONDENT:

RAM PRAKASH & ANR.

DATE OF JUDGMENT10/11/1995

BENCH:

VENKATASWAMI K. (J)

BENCH:

VENKATASWAMI K. (J)

VERMA, JAGDISH SARAN (J)

CITATION:

1995 SCC Supl. (4) 208 1995 SCALE (6)337

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

VENKATASWAMI, J.

Leave granted.

Heard counsel on both sides.

This appeal by special leave is directed against the

judgment and order dated 18.3.1992 of the High Court of

Punjab & Haryana in RSA No. 2342 of 1981. The question that

arises for consideration in this appeal is whether a

partition effected during the pendency of the appeal affects

the right of a person who was admittedly a co-sharer at the

time of sale of pre-emption.

Brief facts are the following:

The appellants are the legal representatives of one

Jinda Ram who was the plaintiff and filed a suit for pre-

emotion for agricultural land measuring 20 kanals 4 marlas

as described in the Plaint Schedule. This right of pre-

emption was claimed under Section 15(b) fourthly and fifthly

of the Punjab Pre-emption Act, 1913 as a co-sharer and also

as a tenant. The suit was contested and the trial court

framed as many as 10 issues and found that the plaintiff was

a co-sharer in the joint khewat of the suit land and has a

preferential right of pre-emption. The claim of the

plaintiff that he was a tenant was also found in favour of

the plaintiff. Though the plaintiff claimed that the value

of the value of the proparty was only Rs. 6,000/- as against

the sale price show in the document as Rs. 10,500/-, the

trial court did not agree with this contention of the

plaintiff. Notwithstanding the finding in favour of the

plaintiff with regard to his right of pre-emption, the trial

court granted a partial relief only on the ground that out

of 8 vendors, six were females and the right of pre-emption

was available to the plaintiff only to the extent of 2 male

vendors shares and on that finding granted a decree in

favour of the plaintiff.

Aggrieved by the decree of the trial court in not

granting full relief, the plaintiff preferred an appeal. The

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learned Additional District Judge, Karnal reversed the

conclusion of the trial court that the plaintiff was not

entitled to the right of pre-emption so far as the shares of

female vendors were concerned. However, the lower appellate

court dismissed the suit taking away even the partial relief

granted by the trial court by holding that vendees-

defendants after the purchase of the suit land became co-

shares and as such there could be no right of pre-emption

against them. Consequently the first appellate court while

dismissing the appeal dismissed the suit as well.

Still aggrieved, the plaintiff preferred a second

appeal to the high Court. The learned Single Judge while

setting aside the reasoning of the lower appellate Court as

mentioned above observed as follows:

"That finding of the lower appellate

court that vendees have become co-

sharers by the impugned sale and so the

plaintiff has no statutory right of pre-

emption is palpably wrong and legally

unsustainable".

Having held so, the learned Judge gave another

reasoning for dismissing the second appeal. It was contended

before the learned Single Judge that the pre-emptor has to

maintain his qualification at all the three stages, namely,

(a) at the time of sale, (b) at the time of institution of

suit and (c) at the time of decree. It was further pointed

out before the learned Single Judge that during the pendency

of the appeal, the suit lands were partitioned and in view

of the changed pos-tion, the claim of the plaintiff that he

continues to be a co-sharer in the joint holding was