Punjab-Haryana High Court
Daya Chand Etc vs Satish Kumar on 24 October, 2024
Author: Alka Sarin
Bench: Alka Sarin
Neutral Citation No:=2024:PHHC:139987
203
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA-1566-1995 (O&M)
Date of Decision : 24.10.2024
Daya Chand (deceased) through LRs & Ors ... Appellant(s)
Versus
Satish Kumar and Ors ... Respondent(s)
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. K.S. Dhaliwal, Advocate and
Mr. Vicky Sharma, Advocate for the appellants.
Mr. Kartar Singh Malik, Advocate and
Mr. Sandeep Singh Ghangas, Advocate
for respondent Nos.1 and 2.
ALKA SARIN, J. (Oral)
1. The present regular second appeal has been filed by the
defendant Nos.1 to 4-appellants against the judgment and decree dated
08.02.1995 passed by the Trial Court and the judgment and decree dated
17.05.1995 passed by the First Appellate Court.
2. Brief facts relevant to the present lis are that the plaintiff-
respondent Nos.1 and 2 herein filed the present suit for possession by way of
pre-emption of the land measuring 18 kanals being 360/760 share of total
land measuring 38 kanals 0 marla situated in the revenue estate of Village
Morkhi, Tehsil Safidon, District Jind. It was pleaded that the vendor-
defendant No.5 (respondent No.3 herein) was owner in possession of land
measuring 18 kanals being 360/760th share of total land measuring 38 kanals
as described in detail in the headnote of the plaint, who vide registered sale
deed No.700 dated 24.04.1992 sold the land to the defendant Nos.1 to 4-
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RSA-1566-1995 (O&M) -2-
appellants for sale consideration of Rs.56,250/-, whereas only Rs.45,250/-
was actually paid. The plaintiff-respondent Nos.1 and 2 being co-sharers and
the defendant Nos.1 to 4-appellants being strangers, the plaintiff-respondent
Nos.1 and 2 claimed to have a superior right of pre-emption. Hence, the
present suit. On notice, the defendant Nos.1 to 4-appellants herein appeared
and filed their written statement raising various preliminary objections
regarding locus standi, maintainability, estoppel and that zerepanjam was
not deposited within time. On merits the defendant Nos.1 to 4-appellants
herein asserted that the plaintiff-respondent Nos.1 and 2 were not co-sharers
in the suit land and that they had actively participated in the sale. In the
alternative it was prayed that in case the suit is decreed then the defendant
Nos.1 to 4-appellants were entitled to the sale consideration. Replication was
filed. On the basis of the pleadings, the following issues were framed :
1. Whether the plaintiffs have superior right to pre-
empt the sale ? OPP
2. Whether the sale amount of Rs.26,250/- was fixed
in good faith and actually paid ? OPD
3. If issue No.2 is not proved, what wat the market
value of the suit land at the time of sale ? OPP
4. Whether the plaintiffs have no locus standi to file
the present suit ? OPD
5. Whether the 1/5th pre-emption amount has not
been deposited within time, if so its effect ? OPD
6. Whether the plaintiffs are estopped from filing the
suit by their act and conduct ? OPD
7. Whether the suit of the plaintiffs is not
maintainable in the present form ? OPD
8. Relief.
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3. The Trial Court vide the judgment and decree dated 08.02.1995
decreed the suit and the plaintiff-respondent Nos.1 and 2 were directed to
deposit the balance amount, less 1/5th zerepanjam already deposited, within
a period of one month from the date of the passing of the judgment and
decree. Aggrieved by the same an appeal was preferred by the defendant
Nos.1 to 4-appellants which appeal was also dismissed by the First
Appellate Court vide judgment and decree dated 17.05.1995. Hence, the
present regular second appeal.
4. The sole argument raised by the learned counsel for the
defendant Nos.1 to 4-appellants is that by way of the amendment of the
Haryana Amendment Act, 1995, the right to pre-empt on the basis of co-
sharer has been taken away and hence the judgments and decrees passed by
the Courts be set aside.
5. Per contra, the learned counsel for the plaintiff-respondent
Nos.1 and 2 has relied upon the judgment of the Larger Bench of the
Hon'ble Supreme Court in the case of Shyam Sunder & Anr. V/s Ram
Kumar & Anr. [2001 (3) RCR (Civil) 754] to contend that the amendment
was prospective and would not have retrospective effect.
6. Heard.
7. In the present case the only argument raised by the learned
counsel for the defendant Nos.1 to 4-appellants is that as per the amendment
introduced by the Haryana Amendment Act, 1995 the right of a co-sharer to
pre-empt a sale has been taken away. The law since stands settled by the
Larger Bench of the Hon'ble Supreme Court in the case of Shyam Sunder
(supra) wherein it has been held as under :
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"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
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
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(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 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."
8. In view of the law laid down by the Hon'ble Supreme Court in
the case of Shyam Sunder's (supra), the argument of the learned counsel for
the defendant Nos.1 to 4-appellants cannot be accepted. No question of law
much less substantial question of law arises in the present case. The present
appeal being devoid of any merits is accordingly dismissed. Pending
applications, if any, also stand disposed off.
24.10.2024 ( ALKA SARIN )
Yogesh Sharma JUDGE
NOTE: Whether speaking/non-speaking: Speaking
Whether reportable: YES/NO
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