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TMI Blog1974 (3) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... -- "The principal contention that has been advanced by the learned counsel for the vendees is that in view of Section 31, the applicability of Section 5 has to be seen at the date of the ultimate decision and not at the date of the suit. A contrary view to the contention urged has been taken in three decisions of this Court, Balwant Singh v. Kehar Singh 1965 PLR 972; Madan Lal v. Dhan Raj 1964 p&h 343 and Tek Chand v. Sain Dass 1867 P & H824. It appears to me that these decisions run contrary to the decision of the Supreme Court in Ram Sarup v. Munshi AIR 1963 SC 553, wherein their Lordships approved the decision of this Court in Ram Lal v. Raja Ram 1962 P & H LR 291. Apart from this, there is no time-limit fixed in Section 5 upto which the waste land can be reclaimed by the vendees. In my opinion, no artificial time-limit can be fixed and the proper approach would be that the applicability of Section 5 should be judged at the time when the decree is to be passed. As I hold a contrary view to the Division Bench decisions already referred to, it will be proper that these cases are settled by a Full Bench. The other points are not very complicated and it would be proper t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en made and of what value? (6) Relief. (6-A) Whether the plaintiff and defendant No. 1 are governed by custom in matters of succession and alienation. Its effect? (7) Whether the sale is not pre-emptible on the ground mentioned in the new amending Act in Section 5 and about what area?" The trial Court decided issue No. 1 in favour of the plaintiff and decided issues No: 1, 2, 3, 4, 5 and 6-A against the defendants. It was held that the land in suit was not agricultural land and as such the provisions of Section 5, as amended, of the Punjab Pre-emption Act were not applicable to the present case and issue No. 7 was also decided against the defendants. As a result, decree for possession by pre-emption of the land in suit on payment of ₹ 21.685 was passed in favor of the plaintiff against the vendees after adjusting l/5th of the amount already deposited by them. Feeling dissatisfied Karnal Singh and others defendants-vendees filed an appeal against this decree in the Court of the District Judge, which was decided by the Additional District Judge, Karnal, on 1-4-1961. The Additional District Judge affirmed the decision of the trial Court on issues Nos. 1, 2, 3, 4, 5 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion suit. He further argued that the law laid down in 1965 P & H LR 972 and 1967 P & H 824 to the effect that the land, which is saved from the pre-emption suit is only the land, which has been reclaimed upto the date of the suit and not beyond that is not correct and is contrary to the law laid down by the Supreme Court in : ( (1963) 3 SCR 858:AIR 1963 SC 553) and an earlier Division Bench ruling of this Court reported as 1962 PLR 291. 4. Before proceeding to examine these contentions, I set out below the relevant provisions of the Punjab Preemption Act. "Section 5 No right of pre-emption shall exist in respect of -- (a) -- -- -- -- (b) the sale of agricultural land being waste land reclaimed by the vendee. Explanation:-- For the purposes of this section the expression 'waste land', means recorded as banjar of any kind in revenue records and such ghair mumkin lands as are reclaimable." "Section 31 No Court shall pass a decree in a suit for pre-emption, whether instituted before or after the commencement of the Punjab Pre-emption (Amendment) Act, 1960, which is inconsistent with the provisions of the said Act." This Section 31 and clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be sustained." It was further observed in the body of the judgment that when an appeal is filed, the finality which attaches to the decree of the lower Court disappears and that even when an appellate Court dismisses an appeal, it also is passing a decree. 7. The next case relied upon by Mr. Kaushal is Amir Singh v. Ram Singh The facts of this case were that the properties in suit had been sold by 'A' to the appellants on May 31, 1956, but the respondents, as the owners of certain agricultural land in the patti claimed that they had a right of preemption under Section 15 (c) (ii) and (iii) of the Punjab Pre-emption Act, 1913. In the suit instituted by the respondents for this purpose, the appellants resisted the claim on the ground that the vendees from 'A' had transferred by exchanges some of the items out of the lands purchased by them and that as a result of this said exchange the appellants themselves had become entitled to pre-empt the said sales under the same statutory provision. The suit was, however, decreed by the trial Court and the decision was confirmed by the High Court of Punjab. The appellants obtained special leave to appeal to the Suprem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opportunity to amend their claim by putting forth their right to ask for pre-emption as tenants under the amended provisions of Section 15 and after the amendments are thus made, the appellants should be given an opportunity to file their written statements and then appropriate issues should be framed and the suit tried and disposed of in the light of the findings on those issues in accordance with law. To the same effect was the law laid down in Chanan Singh v. Jai Kaur (1970) 1 SCR 803 : AIR 1970 SC 349). 8. In (1960) 62 PLR 291 the facts were that the plaintiff filed a suit for pre-emption on the ground of vicinage. The trial Court dismissed the suit holding that the place where the preempted property was situate fell outside the limits of Panipat town and in that locality no custom of pre-emption prevailed. On appeal, the Lower Appellate Court reversed the decision of the trial Court and decreed the plaintiff's suit holding that the custom of pre-emption prevailed in the locality in which the property in dispute was situate. Against this decision the vendee filed a second appeal in the High Court. During the pendency of the appeal, the Punjab Pre-emption Act (I of 1913) w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the first requirement of Section 15 (1) (a) Fourthly, that he is a tenant who holds the land. In that situation he cannot succeed in a pre-emption suit if the decree for eviction has been passed after the sale but before the institution of the suit or during its pendency and before the date of decree." Similar is the case of a person, who flies a suit to pre-empt the sale on the ground of being a co-sharer in the property and in this respect reference may be made to Het Ram v. Dal Chand AIR 1933 Lah 481 The facts of this case were that at the time when the suit for pre-emption was instituted, the plaintiff was a co-sharer in the property sought to be preempted, but a parallel litigation had been going on in the shape of a partition suit and, before a decree could be passed in the pre-emption suit, the final stages of the partition suit had been reached and certain specific plots were marked off for each of the co-sharers and the result was that the plaintiff ceased to be a co-sharer in the land, in respect of which he had brought the three pre-emption suits. On these facts, it was held as under:-- "The law of pre-emption is a highly technical one and a plaintiff, befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he pre-emptor." There is no provision In the Punjab Preemption Act, which prohibits the vendee from reclaiming the land during the pendency of the suit to defeat the suit of the pre-emptor. Section 21-A of the Puniab Pre-emption Act, as contended by the counsel for the plaintiff-respondent Jabbar Singh, can have no application to such reclamation of the waste land. Section 21-A of the Act lays down that any improvement, otherwise than through inheritance or succession, made in the status of a vendee-defendant after the institution of a suit for pre-emption shall not affect the right of the pre-emptor-plaintiff in such suit. This section refers to the improvement in the status of the vendee during the pendency of the suit and does not refer to the improvement made in the property or land, which is the subject-matter of the suit and, therefore, it has no application to this case. 12. Mr. H. L. Sibal, the learned Counsel for the plaintiff-respondent Jabbar Singh relied upon a Division Bench judgment of this Court in 1965 PLR 972, in support of his contention that the land which is saved from the pre-emption suit is only that land out of the sold land, which has been reclaimed u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be our sole guide. As much of the agricultural waste land as has been reclaimed by the vendee is saved from the hands of the per-emptor. There is no warrant to assume that the word 'reclaimed' includes land to be reclaimed. This construction enables us to reach a conclusion without the addition of anything more than is actually in the statute itself and has been rightly preferred by the Lower Appellate Court. If a vigilant suitor thereby stands to gain we should remain uninfluenced by this result. After all. it should not be regarded as an unmeritorious reward for a pre-emptor who in knowledge of the law is prompt enough to bring a suit for pre-emption in respect of agricultural waste land even when the vendee has not had a chance to reclaim it after the sale." The reasoning adopted in these two Division Bench judgments cannot be accepted in view of the law laid down in the above-mentioned Supreme Court judgments reported as ((1963) 3 SCR 858 :AIR 1963 SC 553); (1963) 3 SCR 884 and (1970) 1 SCR 803 : AIR 1970 SC 349) and by a Division Bench of this Court in 1962 PLR 291. While deciding Balwant Singh's case 1965 PLR 972 (supra), the learned Judges did not take n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... beyond, to attract the provisions of Section 5 (b) of the Act. The first ruling relied upon by him is Ramji Lal Ram Lal v. State of Punjab (FB). wherein it was held as per head note 'A' as under:-- "Where a pre-emptor has established his preferential right to pre-empt a sale and a pre-emption decree has been passed In his favour by the first Court, it is not necessary that he should retain that superior right of pre-emption till the hearing of the appeal preferred by the vendee against the decree. When a pre-emption decree is passed by the first Court, the right of pre-emption becomes a vested right which can only be taken away from the pre-emptor decree-holder by retrospective legislation. Therefore, where, during the pendency of the appeal against a pre-emption decree, a notification under Section 8 (21 was issued by the Punjab Government exempting the sale, with respect to which the decree was passed, from the right of pre-emption. That the Notification could not have retrospective effect because the Act itself made no provisions for retrospective operation of such notifications. The Notification could not, therefore, take away the already exercised right of pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counter-act the view taken in the aforesaid Full Bench authority that the vendee was entitled to defeat the pre-emption suit by improving his status till the date of the decree by the trial Court. Section 21-A was added in the Punjab Pre-emption Act by the (Punjab Pre-emption Act) (Amendment) Act No. I of 1944 and this section came into force with effect from 29th May, 1944. This Section 21-A simply says that a vendee cannot make improvement in his status otherwise than through inheritance or succession after the institution of the suit to defeat the claim of the pre-emptor. In the instant case, the vendee-appellants did not make any improvement in their status and they simply reclaimed the land to get benefit of Section 5 (b) read with Section 31 of the pre-emption Act. 19. For the reasons given above, it is held that in view of the provisions of Section 31 of the Punjab Pre-emption Act, the applicability of Section 5 (b) of that Act has to be seen at the date of the ultimate decision of the case and not at the date of the institution of the suit. Under Section 5 (b), no time-limit is fixed upto which the waste land can be reclaimed by the vendee to defeat the suit of the pre-em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Local Commissioner to inspect the land in dispute in village Chanal Heri, Tahsil Thanesar, to find out if the vendees had broken the land in suit and if so, when and to what effect. He visited the spot on November 9, 1959 but none of the parties was present even though the date of inspection had been intimated to them by the trial Court. The Local Commissioner called the vendor and some other persons, who took him to the land in suit. His report is Exhibit P. 6. He found that the land in suit is situated at a distance of two miles from the village. He observed that front portion of the land, which measured about 9 killas had been broken within about a month of his inspection with a tractor and that gram crop had been sown therein. These nine killas had not yet been levelled. The other land was lying unbroken. 24. The trial Court appointed another Local Commissioner, Shri Rameshwar Lal Gupta, Pleader, by order dated Feb. 22, 1960, on the application made by Karnail Singh and others, vendees-appellants, that a Local Commissioner may be appointed, who should visit the spot in the presence of the parties and should report how much of the land was broken and was under cultivation. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, according to Section 5 (b) read with Section 31 of the Act. Jab-bar Singh plaintiff-pre-emptor has no right of pre-emption and his suit must fail. 26. As a result, Appeal No. 560 of 1961, filed by Karnail Singh and others, defendants-vendees, is accepted and the decree of the Additional District Judge dated April 1, 1961, passed for possession by pre-emption of the whole of the land in suit excepting 5 Khasra Nos. 1071 to 1075 is set aside and the suit for pre-emption filed by Jabbar Singh plaintiff is dismissed in toto. Appeal No. 1221 of 1961 filed by Jabbar Singh plaintiff is dismissed. Taking into consideration the facts and circumstances of this case, the parties are left to bear their own costs in both the appeals. D.K. Mahajan, J. 27. I have gone through the judgment prepared by my learned brother. Pattar. J. I entirely agree with nun. But in view of the importance of the question involved. I would like to add a few words of my own. 28. Section 5 of the Punjab Preemption Act clearly postulates that there is no right of pre-emption in respect of agricultural land which, when sold, was waste and has been reclaimed by the vendee. Therefore, necessarily the reclama ..... X X X X Extracts X X X X X X X X Extracts X X X X
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