Dismissed

Mohd. Yusuf and Ors. v. Kuldeep Singh and Ors.

Punjab & Haryana HC13 Aug 2010RSA/274/2008

Case brief

AI extract

What is this about?

The High Court dismissed the second appeal against a second appeal judgment. The court held that the Punjab Preemption (Haryana Amendment) Act, 1995 came into force on 17.05.1995. Since the trial court decree was passed on 08.05.1995, the co-sharer's right of pre-emption was subsisting and valid. The amendment did not affect the right acquired before its commencement.

What did the court decide?

The second appeal was dismissed finding no merit and no substantial question of law arising.

Mohd. Yusuf and Ors. Vs Kuldeep Singh and Ors. — Property and Title | Punjab & Haryana HC (2010)

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R. S. A. No. 274 of 2008

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

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Case No. : R. S. A. No. 274 of 2008

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Date of Decision : August 13, 2010

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Mohammad Yusuf and others

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.... Appellants

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Vs.

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Sardara Singh (since deceased and now represented by his LRs) .... Respondents

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CORAM : HON'BLE MR. JUSTICE L. N. MITTAL

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Present : Mr. Vinod Gupta, Advocate for the appellants.

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Mr. Y. K. Sharma, Advocate for the respondents.

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L. N. MITTAL, J. (Oral) :

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Defendants, having failed in both the courts below, have filed the instant second appeal.

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Sardara Singh – plaintiff (since deceased and represented by respondents as his legal representatives) filed suit for possession of suit land by pre-emption on the ground of being co-sharer in the land, of which a share was sold to the defendants by Ibrahim. The defendants resisted the suit on various grounds.

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R. S. A. No. 274 of 2008

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Learned Additional Senior Sub Judge, Jagadhri, vide judgment and decree dated 08.05.1995, decreed the plaintiff's suit. First appeal preferred by the defendants stands dismissed by learned Additional District Judge, Yamuna Nagar at Jagadhri, vide judgment and decree dated 04.09.2006. Feeling aggrieved, the defendants have preferred the instant second appeal.

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I have heard learned counsel for the parties and perused the case file.

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Learned counsel for the appellants vehemently contended that right of co-sharer to pre-empt the sale was abolished by the Punjab Preemption (Haryana Amendment) Act, 1995 (in short – Amendment Act) and the said Amendment Act was notified vide notification dated 07.05.1995 and therefore, the plaintiff-respondent did not have superior right of preemption on 08.05.1995 – the date of passing of decree by the trial court, although the pre-emptor is required to retain his preferential right of preemption till passing of decree by the trial court. Reliance in support of this contention has been placed on judgment of Hon'ble Supreme Court in the case of Shyam Sunder and others vs. Ram Kumar and another reported as AIR 2001 Supreme Court 2472 . It was laid down therein that the aforesaid Amendment Act is not retrospective and right of co-sharer to pre-empt the sale existing on the date of decree of the trial court is not extinguished by the amendment on account of pending appeal. In other

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R. S. A. No. 274 of 2008

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words, it was held that if decree of the trial court was passed before the enforcement of the Amendment Act, the pre-emptor would still be entitled to pre-empt the sale in spite of the Amendment Act.

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Learned counsel for the respondents, however, contended that the aforesaid Amendment Act was published in Government Gazette dated 17.05.1995 and therefore, the said Amendment Act came into force on 17.05.1995 i.e. after the passing of the decree by the trial court and therefore, the plaintiff's suit has been rightly decreed.

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I have carefully considered the rival contentions. In view of judgment of Hon'ble Supreme Court in the case of Shyam Sunder (supra) , there is no dispute with the legal proposition that if decree of the trial court was passed before the aforesaid Amendment Act came into force, the preemptor's right would not be extinguished. Consequently, the question to be decided is as to when the aforesaid Amendment Act came into force. However, this question need not detain me for long.

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According to Section 3 of the Punjab General Clauses Act, 1898, where any Punjab Act is not expressed to come into operation on particular day, then it shall come into operation on the day on which the assent thereto of the Governor or the President, as the case may require, is first published in the official Gazettee and in every such Act, the date of the first publication thereof shall be printed either above or below the title of the Act. In the instant case, assent of the Governor to the aforesaid

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R. S. A. No. 274 of 2008

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Amendment Act was first published in the official Gazettee on 17.05.1995 and therefore, the aforesaid Amendment Act came into operation on 17.05.1995 because the Amendment Act itself has not expressed any particular date of its coming into operation. Section 3 of the Punjab General Clauses Act, 1898 is very unambiguous and categorical and in view of plain language of the said provision, the aforesaid Amendment Act came into operation w.e.f. 17.05.1995 – date of its publication in the official Gazettee. Suit filed by plaintiff-respondent stood decreed by the trial court vide judgment and decree dated 08.05.1995 i.e. before coming into operation of the aforesaid Amendment Act. In other words, till passing of decree by the trial court, plaintiff-respondent retained his superior right of pre-emption on the ground of being co-sharer. Repeal of the said ground of pre-emption by the aforesaid Amendment Act would not affect the pre-emption right of respondent in the instant case. There is, therefore, no illegality in the judgments and decrees of the courts below decreeing the suit of plaintiffrespondent.

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In view of aforesaid discussion, I find no merit in the instant second appeal nor any substantial question of law arises for determination in the instant second appeal. The appeal is accordingly dismissed.

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( L. N. MITTAL ) JUDGE

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August 13, 2010

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monika

Mohd. Yusuf and Ors. v. Kuldeep Singh and Ors.

Case brief

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Mohd. Yusuf and Ors. v. Kuldeep Singh and Ors.

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