http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2  

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.