Full Judgment Text
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PETITIONER:
MANSU
Vs.
RESPONDENT:
SHADI RAM
DATE OF JUDGMENT: 20/02/1996
BENCH:
PUNCHHI, M.M.
BENCH:
PUNCHHI, M.M.
SEN, S.C. (J)
CITATION:
1996 AIR 1818 1996 SCC (3) 97
JT 1996 (3) 31 1996 SCALE (2)413
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
The sole appellant having died, application for
substitution is allowed.
The appellant before us (now represented by his heirs
and legal representatives) is the plaintiff-pre-emptor. The
respondent on the other side is the vendee. The suit
property was sold by a set of co-sharers, males as well as
females. The appellant staked claim to the suit property in
exercise of his right of pre-emption based on tenancy. The
respondent resisted the suit contending that since the
vendors were both males and females, the share of the female
vendors was not pre-emptable in terms of Section 15(2) of
the Punjab Pre-emption Act as applicable to the State of
Haryana. And, further, if the sale by female vendors was not
pre-emptable, he as a successors-in-interest became a co-
sharer in the suit land, and as such he had a superior right
over the plaintiff under Section 15(1) of the aforesaid Act.
The Trial Court as also the lower appellate court went
into oral and documentary evidence adduced by the parties in
coming to the firm conclusion that the appellant being a
tenant had a superior right of preemption in preference to
the respondent. The High Court allowed the second appeal of
the vendee-respondent and dismissed the suit of the
appellant, on the premise that when part of the sale
effected by female vendors was not pre-emptable under
Section 15(2), then the vendee, as a co-sharer in his own
right, had a right to pre-empt the sale made by the male
vendors under section 15(1) of the Act. It is this view of
the High Court which has been put to challenge before this
Court.
In Attam Prakash vs. State of Haryana and Ors. [1986(2)
SCC 249], this Court has categorically struck down Section
15(2) of the Act as ultra vires the Constitution. As
referred to earlier, Section 15(2) applies to cases of sales
made by females. Due to the non obstante clause operating in
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Section 15(2), those sales are not pre-emptable under
Section 15(1) of the Act. When the right of pre-emption
under Section 15(2) is no longer available, it can now be
searched in Section 15(1) in so much as is left alive in
Attam Prakash’s case. Thereunder, in clause ‘fourthly’, the
right of pre-emption vests in a co-sharer and then in clause
‘fifthly’, it vests in the tenant who holds under tenancy of
the vendor or vendors the land or property sold or a part
thereof. Until the High Court decision, the co-sharer had a
superior right of pre-emption over the tenant. In the
meantime, however, by Haryana Amendment Act 10 of 1995 which
came into force on July 7, 1995, the right of pre-emption in
favour of the co-sharer has been withdrawn by causing
necessary amendment in the parent Act. The right of pre-
emption now survives only in favour of the tenant and not
for any other. Thus, the superior claim of the respondent
presently stands snatched away from him by statutory
amendment. This Court in Karan Singh and others vs. Bhagwan
Singh (D) by Lrs and others [1996(1) Scale 594] has taken
the view in this context that it would take judicial notice
of the law as prevailing on the date of the order or
judgment and apply it to mould relief accordingly. Following
the same line of reasoning the respondent has to be rendered
defenceless in asserting his claim for pre-emption on the
basis of co-sharership.
The appellant on the other hand can only succeed on the
basis of his tenancy right. Mr. Harbans Lal, learned senior
counsel for the respondent has made an effort to convince us
that the revenue record adduced in evidence in support of
the plea of tenancy is not reliable, especially when there
are entries suggestive of the fact, that the tenant was not
in cultivating possession in part of the land. These entries
were examined by the courts below, and were reconciled in
favour of the tenant/appellant on the premise that there was
a presumption in favour of continuity of his possession and
once it was conceded that the appellant was the tenant over
the land in dispute, he shall be presumed to have continued
thereafter unless by some cogent evidence or overt act it
could be proved that he abandoned the tenancy or was
otherwise evicted in accordance with law. The oral evidence
goes to support the appellant that he continued to be in
possession till date. He, thus, has a right to maintain his
possession under the existing state of law in exercise of
his right of pre-emption as a tenant.
For the reasons stated above, the appeal is allowed,
the judgment and order of the High Court is set aside and
that of the lower appellant court affirming that of the
trial court is restored. There shall be no order as to
costs. Let the pre-emption money be deposited by the
appellant within sixty days from today, if not already
deposited, in terms of the decree of the trial court,
failing which the suit for pre-emption shall stand dismissed
as also this appeal.