Vs. Kewal Singh & Others  Insc 452 (30 August 2005)
R.C. Lahoti, Y.K. Sabharwal G.P. Mathur S.H. Kapadia & P.K. Balasubramanyan
O R D
E R I.A. No.5 OF 2004.
I.A. No.3 OF 2001. IN CIVIL APPEAL No.417 OF 1997.
Nos.8 to 11 OF 2005. IN I.A. Nos. 2& 6 OF 2002. IN CIVIL APPEAL No.4948 OF
Versus Satbir & Others 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.
No.5 OF 2004 IN I.A. No.3 OF 2001 IN CIVIL APPEAL No.417 OF 1997:
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 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.
the suit was decreed in favour of the plaintiff and the judgment of the trial
court was set-aside.
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:
per the decision of the apex court in Ramjilal 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 plaintiffappellant (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
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.
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, 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.
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:
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.
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.
the suit must be dismissed.
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.
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.
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
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.
Nos.8 & 10 OF 2005 IN I.A. Nos.2 & 6 OF 2002 IN CIVIL APPEAL No.4948 OF
no.3, Raj Singh, in Civil Appeal No.4948 of 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.
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.
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.
Nos.9 & 11 OF 2005 IN I.A. Nos.2 & 6 OF 2002 IN CIVIL APPEAL No.4948 OF
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.
the above reasons, I.A. No.5 of 2004 along with I.A. Nos.8 to 11 of 2005 herein
stand disposed of.