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CASE NO.: Appeal (civil)  417 of 1997

PETITIONER: Ram Kanwar                                       

RESPONDENT: Kewal Singh & Others

DATE OF JUDGMENT: 30/08/2005

BENCH: CJI R.C. LAHOTI,Y.K. SABHARWAL G.P. MATHUR S.H. KAPADIA & P.K. BALASUBRAMANYAN

JUDGMENT: JUDGMENT O R D E R I.A. No.5 OF 2004.  IN  I.A. No.3 OF 2001.  IN  CIVIL APPEAL No.417 OF 1997.

WITH

I.A. Nos.8 to 11 OF 2005.  IN  I.A. Nos. 2& 6 OF 2002.  IN  CIVIL APPEAL No.4948 OF 2001.

Barfo                                                   \005              Appellant      

Versus

Satbir & Others                                 \005    Respondents/                                                                 Applicants

                In the maze of IAs, we are concerned with facts briefly  stated in Civil Appeal No.417 of 1997 and Civil Appeal  No.4948 of 2001 disposed of by this Court vide its judgment  dated 31.7.2001, with a number of connected matters.

I.A. No.5 OF 2004 IN I.A. No.3 OF 2001 IN CIVIL  APPEAL No.417 OF 1997:

       On 6.9.1988, Savitri Devi (vendor) sold lands measuring  76 kanals 9 marlas of distinct killa numbers.  Ram Kanwar  (plaintiff-appellant) filed a suit for possession of the above  lands on the plea that he was co-sharer at all material times and  as such he had a preferential right to acquire it.  The said suit  was contested by the vendees (defendants \026 respondents).  On  15.1.1993, the suit was dismissed by the trial court holding that  the plaintiff-appellant was not a co-sharer in the suit land.  On  appeal from the judgment and decree of dismissal of the suit,  the first appellate court, by order dated 22.2.1995, reversed the  findings of the trial court holding that the plaintiff-appellant  (Ram Kanwar) was a co-sharer at all material times.   Consequently, the suit was decreed in favour of the plaintiff and  the judgment of the trial court was set-aside.  

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       Being aggrieved, the defendants-vendees (respondents in  civil appeal) preferred second appeal to the High Court under  section 100 CPC.  At this stage, it is important to note that  between the judgment of the first appellate court dated  22.2.1995 and the filing of the second appeal in the High Court  by the defendants-vendees (respondents), the Haryana  Assembly enacted Haryana Amending Act No.10 of 1995  taking away the right of co-sharer to pre-empt sale by the co- owner.  In view of the said Amending Act No.10 of 1995, the  High Court, in second appeal, passed the following order: "As per the decision of the apex court in Ramjilal  & Ors. etc. Vs. Ghisa Ram etc. JT 1996 (2) SC 649,  a co-sharer has no right to claim a superior right of  pre-emption.  Since the lower appellate Court  decreed the suit of the plaintiff only on the ground  that the plaintiff is co-sharer and so has a superior  right of pre-emption which right in view of the  amendment made by the Haryana Government has  already been taken a way, appeal consequently  deserves acceptance.  Accordingly, I accept the  appeal, set aside the judgment and decree of the  lower appellate Court and dismiss the suit filed by  the plaintiff."

       Being aggrieved by the dismissal of the suit on the  preliminary point, the plaintiff\026appellant (Ram Kanwar) came  to this Court by way of Civil Appeal No.417 of 1997.  By  judgment dated 31.7.2001, a five-Judge Bench of this Court  held that the Amending Act No.10 of 1995, which came into  force on 7.7.1995, was prospective in operation and, therefore,  it did not effect the decree passed by the first appellate court  before 6.7.1995.  Consequently, the said civil appeal no.417 of  1997 stood allowed.  At this stage, we may point out that there  was an error in the operative part of the judgment of this Court  dated 31.7.2001.  Although, the plaintiff-appellant succeeded in  the appeal, on account of error in the operative part, the word  "dismissed" came to be incorporated.  Therefore, I.A. No.3 of  2001 was allowed and the necessary correction was ordered to  be made in the operative part of the judgment dated 31.7.2001.

       In the said I.A. No.3 of 2001, defendants-respondents  no.1 to 3 have moved IA No.5 of 2004.  Briefly, the plea taken  by the defendants-respondents is that the suit filed by the  plaintiff-appellant (Ram Kanwar) stood dismissed by the  judgment of the High Court dated 16.5.1996 only on the  preliminary point concerning applicability of Amending Act  No.10 of 1995; that the High Court in the second appeal did not  frame substantial question of law although, according to the  defendants-respondents, there were substantial questions of law  involved in the second appeal and, therefore, by way of I.A.  No.5 of 2004, the defendants-respondents seek remand of the  case to the High Court, in accordance with the provisions of  Order XLI Rule 23 CPC.  

       On 17.8.2005, the plaintiff-appellant (Ram Kanwar) has  filed a detailed reply to the said I.A. No.5 of 2004, in which it is  pleaded that in the second appeal before the High Court, the  defendants-respondents did not challenge the findings of fact  arrived at by the first appellate court and, therefore, the High  Court had no occasion to go into the findings of fact recorded  by the first appellate court.  On behalf of the plaintiff-appellant,  it is submitted that the first appellate court is a final court of  fact and according to the settled law, the High Court is bound  by the findings of fact arrived at by the first appellate court and,  therefore, the said I.A. No.5 of 2004 is wholly un-called for,

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particularly when section 100 CPC did not confer jurisdiction  on the High Court to re-appreciate the evidence and interfere  with the findings of fact recorded by the first appellate court.

       We do not find merit in the contention of the plaintiff- appellant that I.A. No.5 of 2004 was wholly uncalled-for, for  the following reasons.  Firstly, as can be seen from the  judgment of the High Court dated 16.5.1996 in RSA No.2198  of 1995 quoted above, the appeal was accepted and the  judgment and decree of the first appellate court was set aside  only on the preliminary point based on the applicability of the  Amending Act No.10 of 1995.  Secondly, we have perused the  memo of appeal filed by the defendants-respondents in RSA  No.2198 of 1995.  We reproduce the grounds of RSA No.2198  of 1995 as under: "1.     That the learned lower appellate court has          erred in accepting the appeal and reversing          the well-considered judgment and decree of          the learned trial court.

2.      That the law of pre-emption, as it stands  today, in the State of Haryana, does not vest  the pre-emptory rights in the co-sharers.   Hence, the suit must be dismissed.

3.      That the plaintiff had ceased to be co-sharer  in the suit land.  He, thus, could not plead  any right of pre-emption.  The learned trial  court has rightly dismissed the suit.

4.      That the learned lower appellate court has  reversed the findings, given by the learned  trial court, merely on the ground, that during  the first appeal, the application of partition  was set aside by the Financial Commissioner  and the case had been remanded.

5.      That the very fact that defendants had  purchased specific khasra nos. showed that  the land had already been partitioned, and the  parties were in possession of their respective  shares.  Therefore, the question of pre- emption could not arise.

       It is, therefore, prayed that the appeal be  accepted, judgment and decree of the lower  appellate court be set aside and that of learned trial  court be restored and the suit be dismissed with  costs, throughout."

       We do not wish to make any observation on the merits of  the matter.  Suffice it to state that in view of the above facts, we  are of the view that the matter needs to be remanded to the High  Court with a direction to decide the said RSA No.2198 of 1995  in accordance with law. We may clarify that our present order  shall not be construed to mean that substantial questions of law  arise in this case.  That question will have to be decided by the  High Court in terms of section 100(4) CPC after hearing the  concerned parties.   

I.A. Nos.8 & 10 OF 2005 IN I.A. Nos.2 & 6 OF 2002 IN  CIVIL APPEAL No.4948 OF 2001:

       Respondent no.3, Raj Singh, in Civil Appeal No.4948 of

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2001, disposed-of by this Court with Civil Appeal No.417 of  1997 along with a number of connected matters, vide judgment  dated 31.7.2001, has filed I.A. No.8 of 2005 inter alia seeking  remand of the case on the ground that the High Court had, by  the impugned order dated 11.9.2000, allowed RSA No.2467 of  1993 only on the preliminary point concerning co-sharer’s right  of pre-emption having been abolished by Haryana Amending  Act No.10 of 1995.   

       A similar I.A. No.10 of 2005 has also been filed by the  LRs of respondent no.2, Ram Phal, in the said Civil Appeal  No.4948 of 2001.

       For the reasons mentioned hereinabove, we remand this  case also to the High Court with a direction to dispose-of RSA  No.2467 of 1993 in accordance with law.

I.A. Nos.9 & 11 OF 2005 IN I.A. Nos.2 & 6 OF 2002 IN  CIVIL APPEAL No.4948 OF 2001:

       These IAs have been preferred by the defendants- respondents in Civil Appeal No.4948 of 2001 for stay of  execution proceedings adopted by the plaintiff-appellant  pursuant to the decision of the first appellate court decreeing the  suit.  Since we have remanded the matter to the High Court,  liberty is given to the defendants-respondents to move the High  Court for interim reliefs in RSA No.2467 of 1993.   

       For the above reasons, I.A. No.5 of 2004 along with I.A.  Nos.8 to 11 of 2005 herein stand disposed of.