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PETITIONER: JINDA RAM (DEAD) BY LRS.

       Vs.

RESPONDENT: RAM PRAKASH & ANR.

DATE OF JUDGMENT10/11/1995

BENCH: VENKATASWAMI K. (J) BENCH: VENKATASWAMI K. (J) VERMA, JAGDISH SARAN (J)

CITATION:  1995 SCC  Supl.  (4) 208 1995 SCALE  (6)337

ACT:

HEADNOTE:

JUDGMENT: J U D G M E N T VENKATASWAMI, J.      Leave granted.      Heard counsel on both sides.      This appeal  by special  leave is  directed against the judgment and  order dated  18.3.1992 of  the High  Court  of Punjab &  Haryana in RSA No. 2342 of 1981. The question that arises  for  consideration  in  this  appeal  is  whether  a partition effected during the pendency of the appeal affects the right  of a person who was admittedly a co-sharer at the time of sale of pre-emption.      Brief facts are the following:      The appellants  are the  legal representatives  of  one Jinda Ram  who was  the plaintiff  and filed a suit for pre- emotion for  agricultural land  measuring 20 kanals 4 marlas as described  in the  Plaint Schedule.  This right  of  pre- emption was claimed under Section 15(b) fourthly and fifthly of the  Punjab Pre-emption Act, 1913 as a co-sharer and also as a  tenant. The  suit was  contested and  the trial  court framed as many as 10 issues and found that the plaintiff was a co-sharer  in the  joint khewat of the suit land and has a preferential  right   of  pre-emption.   The  claim  of  the plaintiff that  he was  a tenant was also found in favour of the plaintiff.  Though the  plaintiff claimed that the value of the value of the proparty was only Rs. 6,000/- as against the sale  price show  in the  document as  Rs. 10,500/-, the trial court  did not  agree  with  this  contention  of  the plaintiff. Notwithstanding  the finding  in  favour  of  the plaintiff with regard to his right of pre-emption, the trial court granted  a partial  relief only on the ground that out of 8  vendors, six were females and the right of pre-emption was available  to the plaintiff only to the extent of 2 male vendors shares  and on  that finding  granted  a  decree  in favour of the plaintiff.      Aggrieved by  the decree  of the  trial  court  in  not granting full relief, the plaintiff preferred an appeal. The

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learned  Additional  District  Judge,  Karnal  reversed  the conclusion of  the trial  court that  the plaintiff  was not entitled to the right of pre-emption so far as the shares of female vendors  were concerned. However, the lower appellate court dismissed the suit taking away even the partial relief granted  by   the  trial  court  by  holding  that  vendees- defendants after  the purchase  of the  suit land became co- shares and  as such  there could  be no right of pre-emption against them.  Consequently the  first appellate court while dismissing the appeal dismissed the suit as well.      Still  aggrieved,  the  plaintiff  preferred  a  second appeal to  the high  Court. The  learned Single  Judge while setting aside  the reasoning of the lower appellate Court as mentioned above observed as follows:      "That finding  of  the  lower  appellate      court  that   vendees  have  become  co-      sharers by  the impugned sale and so the      plaintiff has no statutory right of pre-      emption is  palpably wrong  and  legally      unsustainable".      Having  held   so,  the   learned  Judge  gave  another reasoning for dismissing the second appeal. It was contended before the  learned Single  Judge that the pre-emptor has to maintain his  qualification at all the three stages, namely, (a) at  the time  of sale, (b) at the time of institution of suit and  (c) at  the time of decree. It was further pointed out before the learned Single Judge that during the pendency of the  appeal, the  suit lands were partitioned and in view of the  changed pos-tion, the claim of the plaintiff that he continues to be a co-sharer in the joint holding was without any merit.  This contention  was accepted  by the High Court and consequently,  the  appeal  was  dismissed.  Hence,  the present appeal by special leave.      The learned counsel appearing for the appellants (legal representatives of  plaintiff) submitted that the view taken by  the   learned  Single  Judge  that  notwithstanding  the admitted position that plaintiff was a co-sharer at the time of sale,  at the  time of filing of the suit for pre-emption an also  at the  time of  passing of the decree by the trial court, the plaintiff would loose his right of pre-emption if there is  a partition  during the  pendency  of  the  appeal cannot at  all be  sustained. He  submitted that  if such  a contention  is  accepted,  no  decree  for  pre-emption  can successfully be  obtained. He  also invited our attention to Section 21(A)  of the  Punjab  Pre-Emption  Act,  1913.  His further  contention   was  that   in  any   event  that  the plaintiff’s claim for the right of pre-emption in his status as a tenant could not be defeated.      We find  substance  in  the  argument  of  the  learned counsel for  the appellant  and we  are of the view that the learned Judge  was not  right in  holding that the plaintiff would loose  his  right  of  pre-emption  on  account  of  a partition that  had taken  place pending  appeal even though the right  of the  plaintiff as  a co-sharer to pre-empt was established in  the trial  court and  not challenged  by the vendees-defendants. The  relevant  period  to  exercise  the right of  pre-emption  is  the  period  when  the  sale  was effected and when the suit was filed claiming that right. In this view  of the  matter, the  judgment and  order  of  the learned Single Judge cannot be sustained and accordingly, it is set  aside. The  appellants are  entitled to  a decree as prayed for regarding their right of pre-emption.      So far  as the  valuation of  the  land  is  concerned, thought the trial court fixed it as Rs. 11,667.50, the lower appellate court  at the  instance of the plaintiff on appeal

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has fixed  the sale consideration at Rs. 7,200/- plus stamp, registration and execution charges as fixed in the decree of the trial  court. The  appellants will deposit the amount as determined by  the first  appellate court in the trial court within two months from this date.      The appeal is allowed accordingly, No costs.