Punjab-Haryana High Court
Habib Ahemad vs Abdul Rehman Alias Dulla And Others on 14 March, 2024
Author: Alka Sarin
Bench: Alka Sarin
1
RSA-2504-1995
2024:PHHC:036380
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA-2504-1995 (O&M)
Reserved on : 06.03.2024
Pronounced on: 14.03.2024
HABIB AHMED ....Appellant
VERSUS
ABDUL REHMAN @ DULLA AND ANOTHER ....Respondents
CORAM: HON'BLE MRS. JUSTICE ALKA SARIN
Present: Mr.Ram Chander, Advocate for the appellant.
Mr. Adarsh Jain, Advocate for respondent No.1.
ALKA SARIN, J.
1. The present regular second appeal has been preferred by the
defendant-appellant aggrieved by the judgments and decreespassed by the
Trial Courtand the First Appellate Court dated 11.11.1993 and02.12.1994
respectively.
2. The brief facts relevant to the present lis are that the suit land
was sold by Aktar Husain in favour of Habib Ahmed (the appellant herein)
for a sum of Rs.8,000/- vide a registered deed dated 19.11.1991 (Ex. P-2).
The said sale was sought to be pre-empted by plaintiff-respondent, namely,
Abdul Rehman on the ground of being a co-sharer in the joint khewat and in
that view he had a preferential right to pre-empt the sale and since no notice
was given to him hence the suit was filed. The suit was contested by the
defendant-appellant on the ground that the plaintiff-respondent was not a co-
sharer in the property. He was further allowed to raise an additional plea that
integrity of this judgment/order.
RSA-2504-1995
2024:PHHC:036380
the plaintiff had raised a boundary wall on the land of his share after getting
the same partitioned before the sale.
3. On the basis of the pleadings of the parties the following issues
were framed:-
a. Whether the plaintiff has got superior right of pre-
emption as against the defendant ? OPP
b. Whether the suit is not maintainable ? OPD
c. Whether the plaintiff has no locus standi to file the
present suit ? OPD
d. Whether the defendant is entitled for special consts ?
OPD
e. Relief.
4. The Trial Court decreed the suit holding the plaintiff-
respondent as having a preferential right to pre-empt the sale. Aggrieved by
the same an appeal was preferred which was also dismissed vide a judgment
and decree dated 02.12.1994. Hence the present regular second appeal.
5. Learned counsel for the defendant-appellant would contend that
the plaintiff-respondent was not a co-sharer in the joint khewat and hence
the suit for pre-emption was not maintainable.
6. Per contra, learned counsel for plaintiff-respondent No.1 has
contended that there was sufficient evidence on the record to show that
plaintiff-respondent No.1 was a co-sharer in the joint khewat and that the
suit property had not been partitioned.
7. I have heard the learned counsel for the parties.
integrity of this judgment/order.
RSA-2504-1995
2024:PHHC:036380
8. Vide the 1995th amendment of the Punjab Pre-emption Act, the
right of a co-sharer was taken away, however, vide the judgment of the
Hon'ble Supreme Court in the case of Shyam Sunder &Anr. V/s Ram
Kumar &Anr. [2001 (3) RCR (Civil) 754], it was held as under:-
'From the aforesaid decisions the legal position that
emerges is that when a repeal of an enactment is
followed by a fresh legislation such legislation does not
effect the substantive rights of the parties on the date of
suit or adjudication of suit unless such a legislation is
retrospective and a court of appeal cannot take into
consideration a new law brought into existence after the
judgment appealed from has been rendered because the
rights of the parties in an appeal are determined under
the law in force on the date of suit. However, the
position in law would be different in the matters which
relate to procedural law but so far as substantive rights
of parties are concerned they remain unaffected by the
amendment in the enactment. We are, therefore, of the
view that where a repeal of provisions of an enactment
is followed by fresh legislation by an amending Act such
legislation is prospective in operation and does not
effect substantive or vested rights of the parties unless
made retrospective either expressly or by necessary
intendment. We are further of the view that there is a
integrity of this judgment/order.
RSA-2504-1995
2024:PHHC:036380
presumption against the retrospective operation of a
statute and further a statute is not to be construed to
have a greater retrospective operation than its language
renders necessary, but an amending Act which affects
the procedure is presumed to be retrospective, unless
amending Act provides otherwise. We have carefully
looked into new substituted section 15 brought in the
parent Act by Amendment Act 1995 but do not find it
either expressly or by necessary implication
retrospective in operation which may effect the right of
the parties on the date of adjudication of suit and the
same is required to be taken into consideration by the
appellate Court. In Shantidevi (Smt) and another vs.
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
integrity of this judgment/order.
RSA-2504-1995
2024:PHHC:036380
effect the right of the parties which accrued to them on
the date of suit or on the date of passing of the decree by
the Court of first instance. We are also of the view that
present appeals are unaffected by change in law in so
far it related to determination of the substantive rights
of the parties and the same are required to be decided in
light of law of preemption as it existed on the date of
passing of the decree.'
Hence the suit would be maintainable even after the
amendment. The Trial Court after going through the evidence had returned a
categoric finding on fact that mutation No.1050 sanctioned on 11.09.1989
showed Aktar Husain had purchased half share in the total land from Badam
and Hasan Mohd. vide registered sale deed dated 19.11.1986 for a
consideration of Rs.8,000/-. Ex. P-3 was the mutation No.1098 sanctioned in
favour of the plaintiff, namely, Abdul Rehman after the death of his father,
namely, Yasin and hence it was held that the plaintiff had been able to prove
himself to be a co-sharer in the land. The learned for the defendant-appellant
has not been able to show an iota of evidence on the record to show that the
land had been partitioned and that the plaintiff-respondent was not a co-
sharer on the land. In the absence of any documentary evidence to show that
the land had been partitioned, no fault can be found with the judgments and
decrees passed by the both the Courts.
9. In view of the above, I do not find any merits in the present
appeal. No question of law, much less any substantial question of law, arises
integrity of this judgment/order.
RSA-2504-1995
2024:PHHC:036380
in the present case. The appeal, being devoid of any merit, is accordingly
dismissed. Pending applications, if any, also stand disposed off.
14.03.2024 ( ALKA SARIN )
Aman Jain JUDGE
NOTE : Whether speaking/non-speaking: Speaking
Whether reportable: Yes/No
integrity of this judgment/order.
