Allowed

Ram Kumar v. Om Parkash and Ors.

Punjab & Haryana HC8 Dec 2009RSA/1420/1996

Case brief

AI extract

What is this about?

Appeal against a dismissal of a pre-emption suit by a co-sharer. The High Court upheld the original decree, ruling that the amended Section 15 of the Punjab Pre-emption Act (via Haryana Amendment Act, 1955) is prospective only and does not affect rights established during litigation adjudication by Shyam Sunder case precedent.

What did the court decide?

Judgment and decree of Additional District Judge dismissing suit set aside; decree of Additional Senior Sub Judge in favour of plaintiff upheld.

Ram Kumar Vs Om Parkash and Ors. — Property and Title | Punjab & Haryana HC (2009)

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R.S.A.No. 1420 of 1996 (O&M)

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In the High Court of Punjab and Haryana at Chandigarh

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R.S.A.No. 1420 of 1996 (O&M) Date of decision: 8.12. 2009

Ram Kumar

......Appellant

Versus

Om Parkash and another

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.......Respondents

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CORAM: HON'BLE MRS. JUSTICE SABINA

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Present: Mr.S.S.Dinarpur, Advocate for the appellant.

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Ms.S.K.Mamli, Advocate, for the respondents.

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SABINA, J.

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The substantial question of law that arises in this case is as to what is the effect of substituted Section 15 introduced by the Haryana Amendment Act, 1955 (hereinafter referred to as 'the Amending Act') in the parent Act i.e. Punjab Pre-emption Act (hereinafter referred to as 'the parent Act) as applicable to the State of Haryana with regard to the right of a co-sharer to pre- empt a sale

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R.S.A.No. 1420 of 1996 (O&M) 2

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during the pendency of an appeal after the suit of the co-sharer to pre- empt a sale has been decreed.

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Plaintiffs-appellant filed a suit for possession by way of pre-emption and the same was decreed by the Additional Senior Sub Judge (Ist Class), Jagadhari vide judgment and decree dated 28.3.1995. Aggrieved by the same, defendants filed an appeal, which was allowed by the Additional District Judge, Jagadhari vide judgment and decree dated 6.12.1995. Hence, the present appeal by the plaintiff.

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Brief facts of the case, as noticed by the Additional District District Judge, Jagadhari in para Nos. 3 and 4 of the impugned judgment, are as under:-

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“3. Briefly stated the facts of the plaintiff's case are like this that the plaintiff purchased land measuring 5 marlas out of the said khewat from Sarvshri, Phool chand, Panch Ram, Ram Kumar, Mam Raj, s/o Kura Ram, for a consideration of Rs.1,000/- vide registered sale deed dated 26.6.1990, and thus, the plaintiff has become cosharer in the joint holding. The defendant purchased the suit land from Norata Ram, and Smt.Parsani Devi, for a consideration of Rs.6,000/- vide registered sale deed, dated 8.1.1991. The plaintiff has claimed his superior right of pre-emption on the ground that he is co-sharer in the joint holding. Defendant failed to admit his claim so

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R.S.A.No. 1420 of 1996 (O&M)

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the present suit was instituted.

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Defendants present appellants contested the suit inter alia on the grounds that the plaintiff has no right of pre-emption as he is not a co-sharer in the joint holding. The defendants have incurred stamp and registration charges, in the execution of the sale deed and in case of the decretal of the suit, they are entitled to get the same. It is also pleaded that the defendantvendee have also levelled the suit land and have made improvements by spending Rs.1500/- and the defendantvendees are entitled to be reimbursed in case of decretal of the suit. The suit of the plaintiff as such merits dismissal.”

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On the pleadings of the parties, following issues were framed by the trial Court:-

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“1. Whether the plaintiff has a superior and preferential right to pre-empt the sale being a co-sharer as alleged in the plaint? OPP

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Whether the plaintiff has no locus standi to file the suit? OPD

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Whether the suit is not maintainable in the present form? OPD

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Whether the plaintiff has no cause of action to file the present suit? OPD

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Whether the plaintiff has knowledge and information of the sale deed in favour of the defendants, if so, its effect? OPD

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Whether the defendants have made any improvements in the suit land and spent Rs. 1,500/- as alleged in the written statement? OPD

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Relief. ”

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In the present case, the plaintiff was a co-sharer in the suit land. The sale deed was executed by Narota Ram and Parsani Devi in favour of the defendants on 8.1.1991 for a consideration of Rs.6,000/-. The plaintiff had become co-sharer in the suit property by virtue of sale deed dated 26.6.1990 executed by Phool Chand, Panch Ram, Ram Kumar and Mam Raj, sons of Kura Ram in his favour. The defendants had failed to establish that the plaintiff was no longer a co-sharer in the suit property at the time of execution of sale deed in their favour till the decision of the suit by the trial Court. There was also no material on record to establish that the sale deed dated 26.6.1990, Ex.P-1, in favour of the plaintiff, was a result of fraud. The mutation was sanctioned in favour of the plaintiff on the basis of sale deed, Ex. P-1.

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Section 15 of the Amending Act, whereby right of a cosharer to pre empt a sale was taken away, reads as under:-

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“ Right of pre-emption to vest in tenant- The right of preemption in respect of sale of agricultural land and village

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R.S.A.No. 1420 of 1996 (O&M)

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immovable property shall vest in tenant who holds under tenancy of the vendor or vendors of the land or property sold or a part thereof.”

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The controversy involved in this case is no longer res

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integra. The Apex Court in Shyam Sunder and another v. Ram Kumar and another 2001 (SC) 2472 has held that the Amending Act being prospective in operation does not effect the rights of the parties to the litigation on the date of adjudication of the pre-emption suit and the Appellate Court is not required to take into account or give effect to the substituted Section 15 introduced by the Amending Act. The relevant paras of the aforesaid judgment are reproduced herein as under:-

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“11. An analysis of the aforesaid decisions referred to in first category of decisions, the legal principles that emerges are these:

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The pre-emptor must have the right to pre-empt the sale on the date of filing of the suit and on the date of passing of the decree by the Court of the first instance only.

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The pre-emptor who claims the right to pre-empt the sale on the date of the sale must prove that such right continued to subsist till the passing of the decree of the first court. If the claimant loses that right or a vendee improves his right equal or above the right of the

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R.S.A.No. 1420 of 1996 (O&M)

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claimant before the adjudication of suit, the suit for preemption must fall.

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A pre-emptor who has a right to pre-empt a sale on the date of institution of the suit and on the date of passing of decree, the loss of such right subsequent to the decree of the first Court would not affect his right or maintainability of the suit for pre-emption.

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A pre-emptor who after proving his right on the date of sale, on the date of filing the suit and on the date of passing of the decree by the first court, has obtained a decree for pre-emption by the Court of first instance, such right cannot be taken away by subsequent legislation during pendency of the appeal filed against the decree unless such legislation has retrospective operation.

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14.The legal position that emerges on review of the second category of decisions is that the appeal being continuation of suit the appellate court is required to give effect to any change in law which has retrospective effect.

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During the course of argument, a half-hearted argument was raised that a substituted Section in an Act introduced by an amending Act is to be treated having retroactive operation. According to the learned

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counsel for the appellant, the function of a substituted section in an Act is to obliterate the rights of the parties as if they never existed. This argument is noted only to be rejected. A substituted section in an Act is the product of an amending Act and all the effects and consequence that follow in the case of an amending Act the same would also follow in the case of a substituted Section in an Act.

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Coming to the next question, learned counsel for the appellants after characterising the right of preemption as archaic and feudal, argued that substituted Section 15 being a beneficial legislation enacted for general benefit of citizens, this Court while construing it, is required to apply rule of benevolent construction and on application of the said rule of construction the substituted Section 15 has to be given retroactive operation. Generally rules of interpretations are meant to assit the Court in advancing the ends of justice. It is, therefore, true in the case of application of rule of benevolent construction also. If on application of rule of benevolent construction, the Court finds that it would be doing justice within the parameters of law there appears to be no reason why such rule of construction be not applied in the present case. But there are

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limitations on the powers of the Court, in a sense that Courts in certain situations often refrain themselves to apply rule of benevolent or liberal construction. The judicial precedents have laid down that, ordinarily, where and when the rule of benevolent construction is required to be applied and not to be applied. One of the situations is, when the Court finds that by application of rule of benevolent construction it would be re-legislating a provision of statute either by substituting, adding or altering the words used in the provision of the Act. In such a situation, generally Courts have refrained themselves to apply rule of benevolent construction. Under the cover of application of rule of benevolent construction a Court is not entitled to re-legislate a provision of the Act so construed. The second situation is when the words used in a stature is capable of only one meaning. In such a situation, the Courts have been hesitant to apply the rule of benevolent construction. But if it is found that the words used in the statute give rise to more than one meaning, in such circumstances, the Courts are not precluded to apply such rule of construction. The third situation is when there is no ambiguity in a provision of a statute so construed. If the provision of a

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R.S.A.No. 1420 of 1996 (O&M)

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statute is plain, unambiguous and does not give rise to any doubt, in such circumstances the rule of benevolent construction has no application. However, if it is found that there is a doubt in regard to meaning of a provision or word used in provisions of an enactment it is permissible for court to apply the rule of benevolent construction to advance the object of the Act. Ordinarily, the rule of benevolent construction to advance the object of the Act. Ordinarily, the rule of benevolent construction has been applied while construing welfare legislations or provisions relating to relationship between weaker and stronger contracting parties. Assuming that the amending Act is for general good of people, we do not find the presence of the aforestated situations which may call for application of such rule while constructing substituted Section 15 introduced by the amending Act. A reading of substituted Section 15 would show that the words used therein are plain and simple and there is no ambiguity in it. The words used in the Section do not give rise to more than one meaning. Further, we do not find that amending Act either expressly or by necessary implication is retrospective. If we hold that the amending Act is retrospective in operation, we would

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be re-legislating the enactment by adding words which are to be found in the amending Act either expressly or by necessary intendment and it would amount doing violence with the spirit of the amending Act. For these reasons, the application of rule of benevolent construction is wholly inapplicable while construing substituted Section 15. 40. Lastly, it was contended on behalf of the appellants that the amending Act whereby new Section 15 of the Act has been substituted is declaratory and, therefore, has retroactive operation. Ordinarily when an enactment declares the previous law, it requires to be given retroactive effect. The function of a declaratory statute is to supply an omission or explain previous statute and when such an Act is passed, it comes into effect when the previous enactment was passed. The legislative power to enact law includes the power to declare what was the previous law and when such a declaratory Act is passed invariably it has been held to be retrospective. Mere absence of use of word 'declaration' in an Act explaining what was the law before may not appear to be a declaratory Act but if the Courts finds an Act as declaratory or explanatory it has to be construed as retrospective. Conversely where a

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statute uses the word ' declaratory' the words so used may not be sufficient to hold that the statute is a declaratory Act as words may be used in order to bring into effect new law.

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From the aforesaid decisions, the legal principle that emerges is that the function of a declaratory or explanatory Act is to supply an obvious omission or to clear up doubts as tomeaning of the previous Act and such an Act comes into effect from the date of passing of the previous Act. Learned counsel for the appellants strongly relied upon a decision of two-Judges Bench of this Court Mithilesh Kumari and another v. Prem Behari Khare, 1989 (2) SCC 95 in support of his argument. In the said decision, it was held by this Court that the Benami Transactions (Prohibition) Act, 1988 being a declaratory Act, the provision of Section 4 of the Act has retroactive operation. The reliance on this decision by the appellants' counsel is totally misplaced as this decision was overruled in R.Raja Gopal Reddy v. Padmini Chandrasekharan (supra) wherein it was held that, the Act was not passed to clear any doubt existed as to the common law or the meaning of effect of any statute and it was, therefore, not a declaratory Act.

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We have already quoted substituted Section 15 of the amending Act but do not find that the amending Act either expressly or by necessary implication intended to supply an omission or to clear up a doubt as to the meaning of previous Section 15 of the parent Act. The previous Section 15 of the parent Act was precise, plain and simple. There was no ambiguity in it. The meaning of the words used in Section 15 of the parent Act was never in doubt and there was no omission in its phraseology which was required to be supplied by the amending Act. Moreover, the amending Act either expressly or by implication was not intended to be retroactive and for that reason we hold that the amending Act 10 of 1995 is not a declaratory Act and, therefore, it has no retrospective operation.

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For the aforestated reasons, we approve the view of law taken in Didar Singh etc. v. Ishar Singh (dead) by Lrs. etc. (supra) and further hold that the decision in the case of Ramjilal v. Ghisa Ram (supra) does not lay down the correct view of law.

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The result of the aforesaid discussion is that the amending Act being prospective in operation does not affect the rights of the parties to be litigation on the date of adjudication of the pre-emption suit and the

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appellate Court is not required to take into account or give effect to the substituted Section 15 introduced by the amending Act.”

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Before the Appellate Court, there was nothing to suggest that the plaintiff had ceased to be a co-sharer. Since vide the decision of a Bench of five Judges in Shyam Sunder's case (supra) in order to resolve conflict between the decisions rendered by two different Benches, it has been held that the Amending Act is prospective in operation and will not effect rights of the parties on the litigation on the date of adjudication of pre-emption suit and the appellate Court is not required to take into account or give effect to the substituted Section 15 introduced by the Amending Act, the present appeal deserves to be allowed.

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In these circumstances, the Additional District Judge had erred in dismissing the suit of the plaintiff on the ground that Section 15 had been introduced by the Amending Act, whereby a co-sharer had lost right to pre-empt the sale.

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The defendants had taken the plea that they had made improvements on the suit land and had spent Rs. 1,500/- on improvements. However, the defendants had failed to establish the same by leading any cogent documentary evidence in this regard.

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Consequently, this appeal is allowed and the judgment and decree of the learned District Judge, Jagadhari, whereby the suit

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R.S.A.No. 1420 of 1996 (O&M)

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of the plaintiff was dismissed are set aside and the judgment and decree of the Additional Sub Judge (Ist Class), Jagadhari dated 28.3.1995, whereby the suit of the plaintiff was decreed, are upheld.

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(SABINA) JUDGE

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December 08, 2009 anita

Ram Kumar v. Om Parkash and Ors.

Case brief

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Ram Kumar v. Om Parkash and Ors.

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