Samunder Singh vs Daya Nand And Others

Court
Punjab and Haryana High Court


IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

102 RSA-1572-1996
Date of decision :14.09.2026

SAMUNDER SINGH . .. APPELLANT
VERSUS

DAYA NAND AND ANOTHER ...RESPONDENTS

CORAM: HON'BLE MR. JUSTICE PARMOD GOYAL
Present: Mr. Himanshu Sharma, Advocate
for the appellant.

Mr. Ramesh Hooda, Advocate
for respondent No. 1.


PARMOD GOYAL, J. (ORAL)


1. Present Regular Second Appeal has been preferred by the
appellant-plaintiff being aggrieved by the impugned judgment and decree dated
05.04.1996, vide which the first appeal preferred by respondent-defendant No.
1 against judgment and decree dated 22.10.1994 passed by learned Senior Sub
Judge, Narnaul decreeing suit for pre-emption by plaintiff-appellant, was
accepted and the suit for pre-emption preferred by the appellant-plaintiff was
dismissed on the ground that, subsequent to the filing of the appeal, the right to
seek pre-emption stood abolished w.e.f. 07.07.1995 by way of Haryana
Amendment Act No. 10 of 1995. It was held that since appeal is a continuation
of the suit, the amendment made w.e.f. 07.07.1995 would be applicable and, on
the date of deciding the appeal, no right to seek pre-emption existed in favour of
the plaintiff-appellant. Accordingly, the suit was dismissed and the appeal was
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accepted.

2. Facts in the present case are not in dispute. Appellant-plaintiff
Samunder Singh had preferred a suit for possession by way of pre-emption
regarding sale of 6 kanals 16 marlas, fully described in the headnote of the plaint.
It was claimed that defendant No. 2, a co-sharer with the plaintiff having 1/6th
share in the total agricultural land measuring 71 kanals, had illegally sold land
measuring 6 kanals 16 marlas to defendant No. 1 for a total consideration of Rs.
1,00,000/- vide sale deed dated 16.11.1992, in violation of the right vested in the
plaintiff to pre-empt the sale being a co-sharer.

3. The suit was not contested by defendant No. 2 and was contested
only by defendant No. 1-vendee. He admitted that defendant No. 2 was a co-
sharer with plaintiff and that he had purchased the suit property vide sale deed
dated 16.11.1992 for a total consideration of Rs. 1,00,000/-. He also claimed to
have spent Rs. 12,500/- on registration and, in view of the agreement dated
10.07.1992, claimed to be the owner in possession and contended that the
plaintiff had no right to seek pre-emption and there was no necessity to give
notice.

4. The learned Court of first instance, after appreciating the evidence
led by both the parties, especially that of defendant No. 1, who, while appearing
as DW-1, had admitted that the suit land was joint and defendant No. 1 was one
of the co-sharers, decreed the suit for possession by way of pre-emption. The
learned Court of first instance also took into consideration the copy of
Jamabandi for the year 1991-92 as well as copy of mutation Ex. P-2, from where
it concluded that the suit land was joint and defendant No. 2 was a co-sharer and
could not have sold the suit land without notice to the plaintiff, as the plaintiff,
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being a co-sharer, had a superior right to pre-empt the same.

5. Against the impugned order dated 22.10.1994, defendant No. 1 had
preferred first appeal bearing No. 142 of 16.11.1994. During the pendency of
the appeal, the State of Haryana had amended Section 15 of the Punjab Pre-
emption Act, 1913 by Haryana Amendment Act No. 10 of 1995 w.e.f.
07.07.1995, whereby the right of pre-emption in respect of sale of agricultural
land was amended only in favour of a tenant and the superior right of pre-
emption in favour of a co-sharer was omitted/abolished by way of the said
amendment. Learned First Appellate Court, by taking into consideration the said
amendment, concluded that on the date of deciding the appeal, no right of pre-
emption existed and, therefore, allowed the appeal and dismissed the suit.

6. The issue as to whether the right of pre-emption in favour of co-
sharers, abolished by the Haryana Amendment Act of 1995, would be
prospective or retrospective is not res integra. The Constitution Bench of
Hon’ble Supreme Court, in the judgment titled Shyam Sunder and another Vs.
Ram Kumar and another , 2001(3) RCR (Civil) 754; 2001 AIR Supreme Court
2472, duly considered the effect of the amendment on pending suits and appeals.
The Hon’ble Supreme Court held as under:
“ 45. 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 two-Judges Bench of this Court
in
Mithilesh Kumari and another v. Prem Behari Khare, 1989(2)
SCC 95 in support of his argument. In the said decision, it was held
by this Court that The Benami Transactions (Prohibition) Act, 1988
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being a declaratory Act, the provision of Section 4 of the Act has
retroactive operation. The reliance on this decision by the
appellants' counsel is totally misplaced as this decision was
overruled in
R. Raja Gopal Reddy v. Padmini Chandrasekharan
(supra) wherein it was held that, the Act was not passed to clear
any doubt existed as to the common law or the meaning of effect of
any statute and it was, therefore, not a declaratory Act.
46.
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 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 the amending Act 10 of 1995 is not a
declaratory Act and, therefore, it has no retrospective operation.
47.
For the aforestated reasons, we approve the view of law taken in
Didar Singh etc. v. Ishar Singh (dead) by Lrs. etc. (supra) and
further hold that the decision in the case of Ramjilal v. Ghisa Ram
(supra) does not lay down the correct view of law.

48.
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.
49.
In view of what has been stated above, these appeals fail and
accordingly are dismissed, but there shall be no order as to costs.”


7. Accordingly, the Hon’ble Supreme Court upheld the proposition
MANOJ KUMAR
of law laid down in Didar Singh etc. Vs. Ishar Singh (dead by LRs. etc.) , 2001
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(8) SCC 52. In Didar Singh Vs. Ishar Singh (supra), it was held that in order
to succeed in a suit for pre-emption, the pre-emptor must prove that his right to
pre-empt subsisted till the date of the decree of the Court of first instance and
any subsequent loss of such right by an act beyond his control or by statutory
intervention during the pendency of the appeal against the decree of the trial
Court would not disentitle him from maintaining the decree of pre-emption
already passed in his favour. Whereas, in Ramjilal and others Vs. Ghisa Ram
and others , 1996 (7) SCC 507, it was held that an appeal is a continuation of
the suit and, therefore, the right and remedy of pre-emption must be available
not only on the date of the sale and the date of the suit, but also on the date when
the decree is made and is finally to be affirmed or modified at the time of
disposal of the appeal. Consequently, it was held that the subsequent amendment
taking away the right of pre-emption during the pendency of the appeal would
extinguish the said right. The said view, however, was subsequently overruled
by the Constitution Bench in Shyam Sunder and another Vs. Ram Kumar
and another (supra). The Hon’ble Supreme Court again in Pirthi Vs. Mohan
Singh , 2011 (9) SCC 107, while considering the effect of the Haryana
Amendment Act No. 10 of 1995, duly followed the judgment of the Constitution
Bench in Shyam Sunder and another Vs. Ram Kumar and another (supra),
reiterated that the right of pre-emption must subsist in favour of the plaintiff on
the date of filing of the suit and up to the date of passing of the decree by the
Court of first instance.

8. Since the Constitution Bench in Shyam Sunder and another Vs.
Ram Kumar and another (supra) had approved Didar Singh Vs. Ishar Singh
(supra) and had specifically held that the proposition laid down in Ramji Lal
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Vs. Ghisa Ram and others (supra) is not the correct interpretation of law, it is
clearly made out that the right of pre-emption in favour of a co-sharer would be
seen on the date of passing of the decree by the Court of first instance.

9. In the present case, admittedly, the judgment and decree was passed
by the Court of first instance on 22.10.1994, whereas the amendment was made
effective w.e.f. 07.07.1995, after filing of the appeal. Therefore, in view of the
judgment of the Constitution Bench of the Hon’ble Supreme Court in Shyam
Sunder and another Vs. Ram Kumar and another (supra), the right of pre-
emption in favour of the plaintiff shall remain intact and would not be affected
by the amendment made w.e.f. 07.07.1995. Learned Appellate Court has,
therefore, had come to a wrong conclusion and, accordingly, the judgment and
decree passed by the First Appellate Court cannot be sustained.

10. Faced with the above conclusion, learned counsel for the
respondent has relied upon the judgment of the Hon’ble Supreme Court titled as
Punyadeo Sharma and others Vs. Kamla Devi and others , 2022 LawFinder
(SC) 27; Civil Appeal No. 15 of 2022, decided on 03.01.2022, and has argued
that the Hon’ble Supreme Court has held that the right of pre-emption is a
maligned law and such right has been characterized as feudal, archaic and
outmoded and, therefore, possession by way of pre-emption in favour of the
plaintiff should not be allowed.

11. In Shyam Sunder and another Vs. Ram Kumar and another
(supra), the Hon’ble Supreme Court was considering the interpretation and
effect of the Haryana Amendment Act No. 10 of 1995 and, after considering the
specific provisions of the said amendment, concluded that the amendment was
prospective in nature. It was held that in cases where the judgment and decree
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had been passed prior to the amendment, the right of the pre-emptor would not
be affected by the subsequent amendment and would continue during the
pendency of the appeal.

12. In Punyadeo Sharma and others Vs. Kamla Devi and others
(supra), the Hon’ble Supreme Court was, in fact, interpreting the provisions of
the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus
Land) Act, 1961. From the provisions of the amendment made in the said Act
by Bihar Act No. 6 of 2019, it was concluded that the Legislature in that case
had expressly taken away the right of pre-emption even in pending proceedings
and had provided that all proceedings arising under the 1961 Act would stand
abated. Therefore, the judgment cited by learned counsel for the respondent has
no applicability to the facts and circumstances of the present case, particularly
in view of the Constitution Bench judgment of the Hon’ble Supreme Court in
Shyam Sunder and another Vs. Ram Kumar and another (supra), wherein
the specific provisions of the Haryana Amendment Act No. 10 of 1995 were
considered and it was held that the said amendment is prospective in nature.
Thus, if on the date of passing of the decree by the Court of first instance, the
right of pre-emption existed in favour of the co-sharer, such right would continue
during the pendency of the appeal.

13. Accordingly, the judgment and decree dated 05.04.1996 passed by
the First Appellate Court cannot be sustained and is hereby set aside. The present
appeal is allowed and the judgment and decree passed by the learned Court of
first instance is restored. The appellant-plaintiff shall be entitled to possession
by way of pre-emption subject to compliance with the statutory requirement of
deposit/payment of the entire sale consideration in accordance with law.
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14. The entire consideration amount, if not already deposited, be
deposited by the appellant-plaintiff in terms of the decree passed by the learned
Court of first instance.

15. Pending miscellaneous application(s), if any, also stand(s) disposed
of accordingly.


14.09.2026 (PARMOD GOYAL)
manoj JUDGE


Whether speaking/reasoned Yes
Whether reportable Yes/No
MANOJ KUMAR
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