TaxTMI 
TaxTMI 
1974 (3) TMI 119
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....e made in the order dated 27-6-1971 of Mahajan, J.: -- "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.....
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.... (4) Whether the plaintiff is a big landlord and its effect? (5) Whether any improvements have been 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 Rs. 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 Judg....
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....tificial time-limit can be fixed that the vendees can only reclaim the land upto the date of the institution of the pre-emption 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." &nbs....
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....sive enough so as to require an appellate Court to give effect to the substantive provisions of the amending Act whether the appeal before it was one against a decree granting pre-emption or one refusing that relief. Consequently, in view of Section 31, the decree for preemption passed by the trial Court could 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 ....
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....to have vested in them at the relevant time, with the result that they are entitled, on remand, to ask for a decree passed on the basis of the said rights." As a result, the decree passed by the High Court was set aside and the case was sent back to the trial Court with a direction that it should allow the respondents-plaintiffs an 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 ....
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.... intact and he must hold the land in his capacity as a tenant till the date of the decree. The sale of the land alone cannot divest the tenant of his right to hold the land of which he is in possession by virtue of his tenancy under the vendor. But if his tenancy is determined by a decree for eviction, he loses his status of a tenant. He then does not satisfy 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....
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....disturb a valid transaction by virtue of the rights created in him by statute. To defeat the law of pre-emption by any legitimate means is not fraud on the part of either the vendor or the vendee and a person is entitled to steer clear of the law of pre-emption by all lawful means. Moreover, the right of pre-emption is a weak right and is not looked upon with favour by Courts and therefore, the Courts cannot go out of their way to help the 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 su....
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....e suggestion that it would make it possible for a suit for pre-emption to be brought immediately after the sale, thereby preventing the vendee from reclaiming any waste land. If we accept the contention of the applicants, we encourage, on the other hand, a vendee to take his own time to complete the reclamation of land. We do "not think that the interpretation should be made to depend on the promptness of the pre-emptor or the convenience of the vendee. The plain and grammatical meaning of the word 'reclaimed' should 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 ....
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....urt, then I fail to understand why the vendee cannot defeat the pre-emption suit of the plaintiff by reclaiming the land, which is the subject-matter of the suit during its pendency. 14. For the reasons given above, the contention of the learned Counsel for the plaintiff-respondent is rejected as being devoid of force. 16. Mr. Sibal then referred to two other rulings in support of his contention that land, which is saved from pre-emption suit, is only the land, which has been reclaimed upto the date of the suit and not 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 aw....
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....t any time before the passing of the decree in the pre-emption suit by the trial Court, as the rights of parties are adjudicated upon by the trial Court alone and the function of the Court of appeal is only to see what was the decree which the Court of first instance should have passed. The improvement by the vendee in his status can be effected even after the expiry of one year from the date of the original transaction of sale. The aforementioned improvement can, in certain circumstances, be effected by the vendee even by dealing with the land which is the subject-matter of the suit." 18. In order to 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 o....
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.... Khasra Nos. 1071 to 1075 measuring 40 Kanals had been reclaimed by the vendees before the institution of the suit and this being a finding of fact based on evidence cannot be assailed in second appeal. This finding was also not contested by the learned Counsel for the plaintiff-pre-emptor Jabbar Singh. Consequently, the plaintiff's suit with respect to these khasra numbers must fail and the decision of the Additional District Judge, Karnal. on this point is correct. There is no substance in Regular Second Appeal No. 1221 of 1961 Re: Jabbar Singh v. Karnail Singh, and the same must-be dismissed. 23. During the pendency of the suit, the trial Court appointed Shri Mam Subrat Jain, Pleader of Karnal as 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 t....
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.... Mr. Jagan Nath Kaushal, the learned counsel for the appellants in his arguments and these were not controverted by the counsel for the respondent. The Additional Dist. Judge also found that the entire land in suit had been broken by the vendees before the decree was passed by the trial Court. The decision of the Additional District Judge is dated April 1, 1961. It is undisputed that at present the whole of the land in suit is under cultivation. As held above, we have to look to the condition of the land when the decree is to be passed by the High Court in second appeal. As observed in ((1963) 3 SCR 858 :AIR 1963 SC 553) a Court passes a decree even if it dismisses the appeal. Admittedly, the whole land is under cultivation for the Last several years Therefore, 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....