REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6391 OF 2003
Pirthi .... Appellant (s)
Versus
Mohan Singh & Ors. .... Respondent(s)
J U D G M E N T
P. Sathasivam, J.
1) This appeal is directed against the final judgment and
order dated 07.03.2002 passed by the High Court of Punjab
and Haryana at Chandigarh in RSA No. 136 of 2001 whereby
the High Court dismissed the appeal filed by the appellant
herein.
2) Brief facts:
(a) The appellant-plaintiff and respondent No.5 - whose
name has been deleted from the array of parties by this
Court's order dated 08.08.2003, filed a suit for possession by
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way of pre-emption being Civil Suit No. 107/92/93 against
respondent Nos. 1-4 herein (Defendants) before the Civil Judge
(Jr. Division), Bahadurgarh, Haryana claiming themselves to
be co-sharers with the vendor - Shiv Lal-defendant No.3
(respondent No.3 herein-since deceased, his legal
representatives are on record), who sold away his half share of
the suit land comprised in Khewat No. 22 (min.), Khasra Nos.
47 and 48, Khasra No. 1043 measuring 3 bighas, 3 biswas
pukhta 1058 (2-11) and Khewat No. 28 (min.), Khasra Nos.
54-55. Khasra No. 5496/1693 (2-16) 5497/1693(1-5) total
measuring 10 Bighas 8 Biswas to defendant Nos. 1 & 2
(respondent Nos. 1 & 2 herein) by sale deed dated 08.06.1992
for a consideration of Rs.1,40,000/- and for declaring the
lease deed No. 326 dated 07.05.1992 illegal, null and void and
unwarranted by law. Defandant Nos. 1 & 2 are brothers and
defendant No. 4 (respondent No.4 herein) is their mother.
(b) When the case was fixed for service of the remaining
defendants, defendant Nos. 1 & 4 filed an application for
dismissing the suit of the plaintiffs being not maintainable on
the ground that after passing of the Punjab Pre-emption
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(Haryana Amendment) Act, 10 of 1995, (hereinafter referered
to as "the Act") the right of pre-emption on the basis of co-
sharership is not available to them. The Civil Judge (Jr.
Division), by judgment dated 09.02.1996, accepting the
application filed by the defendants dismissed the suit filed by
the plaintiffs.
(c) Aggrieved by the said judgment, the plaintiffs filed an
appeal being Civil Appeal No. 23 of 1996 before the Additional
District Judge, Jhajjar. By order dated 18.07.2000, the
Additional District Judge dismissed the appeal filed by the
plaintiffs.
(d) Challenging the order passed by the Additional District
Judge, Pirthi-plaintiff No.1 (appellant herein) filed regular
second appeal being RSA No. 136 of 2001 before the High
Court of Punjab & Haryana at Chandigarh. The High Court,
by impugned judgment dated 07.03.2002, holding that the
plaintiff/appellant had lost the character of a co-owner during
the pendency of the suit, dismissed the appeal. Against the
said judgment, the appellant-plaintiff has filed this appeal by
way of special leave petition before this Court.
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3) Heard Mr. Mahabir Singh, learned senior counsel for the
appellant and Mr. Pramod Dayal, learned counsel for
respondent Nos. 2 & 4. Despite service of notice, respondent
Nos.1 and 3 have not chosen to appear in-person or through
counsel.
Discussion:
4) It is the case of the respondents/defendants that
superior right of pre-emption on the basis of co-sharership is
not available to plaintiffs now. After passing of the Act, this
right has been restricted only to the tenants and the plaintiffs
have no locus-standi to file and pursue their suit as they are
not claiming the right as tenants. It is the claim of the
appellant/plaintiff that the suit in question was instituted
prior to the amendment in the Punjab Pre-emption Act, 1913
hence the amendment in the Act is not applicable to the
present case. The trial Court accepted the objection of the
defendants as to the maintainability of the suit and dismissed
the same as not maintainable which was affirmed by the lower
appellate Court. The same view has been reiterated by the
High Court by dismissing the second appeal.
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5) It is true that the suit, in the present case, was filed prior
to the amendment in the Punjab Pre-emption Act, 1913.
Section 15 of the Pre-emption law has been amended and
notified vide Gazette Notification dated 17.05.1995 which
reads as under:
"15. Right of Pre-emption to vest in tenant - The right of
pre-emption in respect of sale of agricultural land and village
immovable property shall vest in the tenant who holds under
tenancy of the vendor/vendors the land or property sold or a
part thereof."
This change in the law affects all pre-emption cases based
upon the co-sharership. In view of this change in the law, a
co-sharer has no right to bring a suit for possession by way of
pre-emption, hence the application filed by the defendants for
dismissing the suit of the plaintiffs being not maintainable had
been accepted by the trial Court and suit of the plaintiff came
to be dismissed. This was affirmed by the lower appellate
Court and finally by the High Court which order is under
challenge in this appeal.
6) While ordering notice on the special leave petition, even
as early as on 02.09.2002, it was specifically mentioned that
as to why the case be not decided in the light of a Constitution
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Bench judgment in Shyam Sunder and Others vs. Ram
Kumar and Another, (2001) 8 SCC 24.
7) In Bhagwan Das (dead) by LRS. and Others vs. Chet
Ram, 1971 (1) SCC 12, a three-Judge Bench of this Court,
while considering right of pre-emption has held that pre-
emptor's right should subsist till institution of suit for pre-
emption and passing of decree. It was further held that the
rule that a pre-emptor must maintain his qualification to pre-
empt up to the date of decree was recognized as well settled.
8) In Rikhi Ram and Another vs. Ram Kumar and
Others, (1975) 2 SCC 318, again, a three-Judge Bench of this
Court, while considering right of pre-emption under the
Punjab Pre-emption Act, 1913, after adverting to the principles
laid down in Bhagwan Das (supra) and considering Section
15(1) of the Punjab Pre-emption Act held that under the
general law of pre-emption, it is firmly established that the
decisive date as regards the right of pre-emptor to pre-empt
the sale was the date of the decree. In other words, the pre-
emptor who claims the right to pre-empt the sale on the date
of the sale must continue to possess that right till the date of
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the decree. If he loses that right before the passing of the
decree, decree for pre-emption cannot be granted even though
he may have had such right on the date of the suit.
9) Now, let us consider the decision of the Constitution
Bench i.e. Shyam Sunder (supra) and its applicability to the
case on hand. Both the above decisions being Bhagwan Das
(supra) and Rikhi Ram (supra) were relied on by the
Constitution Bench.
10) The very same Haryana Amendment Act, 10 of 1995,
which introduced Section 15, was considered by a
Constitution Bench in Shyam Sunder (supra). The question
posed before the Constitution Bench was:
"What is the effect of substituted Section 15
introduced by the Haryana Amendment Act, 1995
(hereinafter referred to as `the amending Act, 1995')
in the parent Act i.e. the Punjab Pre-emption Act
(hereinafter referred to as `the parent Act') as
applicable to the State of Haryana whereby the right
of a co-sharer to pre-empt a sale has been taken
away during the pendency of an appeal filed against
a judgment of the High Court affirming the decree
passed by the trial Court in a pre-emption suit?"
11) When in the case of Shyam Sunder (supra), the main
appeal, i.e., Civil Appeal No. 4680 of 1993 came up for hearing
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before a Bench of this Court, the Bench, on the question of the
effect of the amendment made in 1995 in the parent Act,
found that there is conflict in the view taken in the decisions
of two three-Judge Benches of this Court, which are Didar
Singh vs. Ishar Singh (2001) 8 SCC 52 wherein it was held
that in a suit for pre-emption, the pre-emptor must prove his
right to pre-empt up to the date of decree of the first court and
any loss of right or subsequent change in law after the date of
adjudication of the suit and during pendency of appeal would
not affect the decree of the first court and Ramjilal vs. Ghisa
Ram (1996) 7 SCC 507 wherein it was laid down that appeal
being continuation of the suit, the right to claim pre-emption
must be available on the date when the decree is made and is
finally to be affirmed or needs to be modified at the time of
disposal of the appeal therefrom, and since the amending Act
came into force during pendency of appeal, the right and
remedy of the plaintiff stood extinguished and as a result the
suit must fail. In order to resolve the conflict between the
aforesaid two decisions rendered by two different Benches, the
Bench referred the appeal for decision by a Bench of five
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Judges. It is in this way, the matter was heard by the
Constitution Bench.
12) The Constitution Bench noted the facts which have given
rise to Civil Appeal No. 4680 of 1993. The defendant-
appellants herein purchased land measuring 54 kanals,
situated in Village Rithal Phogat, being 1/2 share of the land
of Khewat Nos. 204, 205 and 206, measuring 108 kanals for a
sum of Rs 84,000/- from vendors viz. Bharpai, Chhoto and
Pyari -- daughters of Bhagwana vide sale deed dated
17-07-1985. The plaintiff-respondents herein claimed
preferential right to pre-empt the sale in favour of the
defendant-appellants on the ground that they are co-sharers
by means of a civil suit laid before the Sub-Judge, Ist Class,
Gohana. In the said suit, issues were framed and the trial
court decided all the issues in favour of the plaintiff-
respondents and consequently on 30-5-1990 the suit was
decreed. The respondents after passing of the decree by the
court of first instance deposited the purchase money as
required under Order 20 Rule 14 CPC. The appeal preferred by
the appellants before the first appellate court and the second
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appeal before the High Court were dismissed and the decree of
the trial court was affirmed. The appellants thereafter
preferred this appeal by way of special leave petition. During
pendency of the appeal, Section 15(1)(b) of the parent Act, on
the basis of which the suit was filed by the plaintiff-
respondents, was amended and was substituted by new
Section 15 whereby the right of a co-sharer to pre-empt a sale
was taken away. The substituted Section 15 of the Act has
been quoted earlier.
13) Since several decisions have been cited, the Constitution
Bench categorized those decisions and referred them as first,
second and third categories of decisions. The first category of
decisions are those wherein the view of law expressed is that
in a suit for pre-emption, the pre-emptor must possess his
right to pre-empt right from the date of sale till the date of
decree of the first court, and loss of that right after the date of
decree either by own act, or an act beyond his control or by
any subsequent change in legislation which is prospective in
operation during pendency of the appeal filed against the
decree of the court of first instance would not affect the right
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of the pre-emptor. The second category of decisions deals with
the cases where right of a pre-emptor was taken away after the
date of decree of the first court and during pendency of the
appeal by statutory enactment which had retroactive
operation. In such cases, it was held that the appellate court
is competent to take into account legislative changes which
are retrospective and accordingly affect the rights of the
parties to the litigation. The decisions in the third category of
cases are those where it has been held that appeal being a
continuation of the suit, the right to pre-empt a sale must be
available on the date when the decree is made and is finally to
be affirmed or needs to be modified at the time of disposal of
appeal and in case of loss of right by legislative changes
during pendency of appeal, the suit for pre-emption must fail.
After analyzing various decisions referred to in the first
category, the Constitution Bench formulated the following
legal principles:
"1. The pre-emptor must have the right to pre-empt on the
date of sale, on the date of filing of the suit and on the date
of passing of the decree by the court of the first instance
only.
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2. The pre-emptor who claims the right to pre-empt the sale
on the date of the sale must prove that such right continued
to subsist till the passing of the decree of the first court. If
the claimant loses that right or a vendee improves his right
equal or above the right of the claimant before the
adjudication of suit, the suit for pre-emption must fail.
3. A pre-emptor who has a right to pre-empt a sale on the
date of institution of the suit and on the date of passing of
decree, the loss of such right subsequent to the decree of the
first court would not affect his right or maintainability of the
suit for pre-emption.
4. A pre-emptor who after proving his right on the date of
sale, on the date of filing the suit and on the date of passing
of the decree by the first court, has obtained a decree for
pre-emption by the court of first instance, such right cannot
be taken away by subsequent legislation during pendency of
the appeal filed against the decree unless such legislation
has retrospective operation."
14) The legal position that emerges on review of the second
category of decisions is that the appeal being a continuation of
the suit, the appellate court is required to give effect to any
change in law which has retrospective effect. In para 15, the
Constitution Bench has held that the legal principle that
emerges out of the aforesaid decisions is that an appeal being
a continuation of the suit, the right to pre-empt must be
available on the date when the decree is made and is finally to
be affirmed or needs to be modified at the time of disposal of
the appeal and where right and remedy of the plaintiff has
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been taken away statutorily during pendency of appeal, the
suit must fail.
15) The following discussion and conclusion in para 28 are
relevant:
"... ..... In Shanti Devi v. Hukum Chand, (1996) 5 SCC 768,
this Court had occasion to interpret the substituted Section
15 with which we are concerned and held that on a plain
reading of Section 15, it is clear that it has been introduced
prospectively and there is no question of such section
affecting in any manner the judgment and decree passed in
the suit for pre-emption affirmed by the High Court in the
second appeal. We are respectfully in agreement with the
view expressed in the said decision and hold that the
substituted Section 15 in the absence of anything in it to
show that it is retrospective, does not affect the right of the
parties which accrued to them on the date of the suit or on
the date of passing of the decree by the court of first
instance. We are also of the view that the present appeals
are unaffected by change in law insofar it related to
determination of the substantive rights of the parties and the
same are required to be decided in the light of the law of pre-
emption as it existed on the date of passing of the decree."
16) After analyzing all the decisions cited therein, the
Constitution Bench has concluded thus:
"44. From the aforesaid decisions, the legal principle that
emerges is that the function of a declaratory or explanatory
Act is to supply an obvious omission or to clear up doubts as
to meaning of the previous Act and such an Act comes into
effect from the date of passing of the previous Act. Learned
counsel for the appellants strongly relied upon a decision of
a two-Judge Bench of this Court in Mithilesh Kumari v. Prem
Behari Khare in support of his argument. In the said
decision, it was held by this Court that the Benami
Transactions (Prohibition) Act, 1988 being a declaratory Act,
the provisions of Section 4 of the Act have retroactive
operation. The reliance on this decision by the appellants'
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counsel is totally misplaced as this decision was overruled in
R. Rajagopal Reddy v. Padmini Chandrasekharan wherein it
was held that the Act was not passed to clear any doubt that
existed as to the common law or the meaning of effect of any
statute and it was, therefore, not a declaratory Act.
45. We have already quoted substituted Section 15 of the
amending Act but do not find that the amending Act either
expressly or by necessary implication intended to supply an
omission or to clear up a doubt as to the meaning of the
previous Section 15 of the parent Act. The previous Section
15 of the parent Act was precise, plain and simple. There
was no ambiguity in it. The meaning of the words used in
Section 15 of the parent Act was never in doubt and there
was no omission in its phraseology which was required to be
supplied by the amending Act. Moreover, the amending Act
either expressly or by implication was not intended to be
retroactive and for that reason we hold that amending Act 10
of 1995 is not a declaratory Act and, therefore, it has no
retrospective operation.
46. For the aforestated reasons, we approve the view of law
taken in Didar Singh v. Ishar Singh and further hold that the
decision in the case of Ramjilal v. Ghisa Ram does not lay
down the correct view of law.
47. The result of the aforesaid discussion is that the
amending Act being prospective in operation does not affect
the rights of the parties to the litigation on the date of
adjudication of the pre-emption suit and the appellate court
is not required to take into account or give effect to the
substituted Section 15 introduced by the amending Act.
48. In view of what has been stated above, these appeals fail
and accordingly are dismissed, but there shall be no order as
to costs."
17) From the above discussion, particularly, in para 45, the
Constitution Bench observed that the Amending Act 10/1995
is not a declaratory Act and, therefore, it has no retrospective
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operation. In para 46, the Constitution Bench has approved
the view of law taken in Didar Singh (supra) and further held
that the decision in the case of Ramjilal (supra) does not lay
down the correct view of law. No doubt, in the penultimate
para 47, the Constitution Bench has concluded that the
amending Act being prospective in operation does not affect
the rights of the parties to the litigation on the date of
adjudication of the pre-emption suit and the appellate court is
not required to take into account or give effect to the
substituted Section 15 introduced by the amending Act. It is
clear that the appellate court is not required to take into
account or give effect to the substituted Section 15 introduced
by the amending Act. On the other hand, as discussed and
concluded in para 46, the dictum laid down in Didar Singh
(supra) has been approved. In Didar Singh (supra), it was
held that in a suit for pre-emption, pre-emptor must prove his
right to pre-empt up to the date of the decree of the first court
and any loss of right or subsequent change in law after the
date of adjudication of the suit and pre-tendency of appeal
would not affect the decree of the first court. The said view
15
has been approved by the Constitution Bench. In other words,
in a suit for pre-emption, the pre-emptor must prove his right
to pre-empt up to the date of decree of the first court. To put
it clear, the pre-emptor must have the right to pre-empt on the
date of sale on the date of filing of the suit and on the date of
passing of the decree by the court of the first instance
[Emphasis supplied]. In the case on hand, the amendment
Act came into force with effect from 17.05.1995 and suit had
been laid on 31.10.1992. In other words, on the date of
institution of the suit, the plaintiff/pre-emptor had a right to
claim "right of pre-emption". However, during the pendency of
the suit, since the amendment Act came into force, deleting
the right of pre-emption and in the absence of such right on
the date of passing of the decree by the court of first instance,
we are of the view that both the courts below have correctly
appreciated the effect of the amendment and the High Court
also rightly dismissed the second appeal holding that the
plaintiff had lost the character of a co-owner during the
pendency of the suit by virtue of the amendment Act.
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18) In view of the above discussion and the interpretation of
the Constitution Bench in respect of substituted Section 15
introduced by the Haryana Amendment Act, 1995 in the
Parent Act i.e. the Punjab Pre-emption Act, we concur with the
view expressed by all the three courts including the High
Court. Consequently, the appeal fails and the same is
dismissed. No order as to costs.
..........................................J.
(P. SATHASIVAM)
..........................................J.
(H.L. GOKHALE)
NEW DELHI;
September 2, 2011.
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