Singh Kamboh Vs. Darshan Singh Datta  INSC 63 (27 January 1994)
Jagdish Saran (J) Verma, Jagdish Saran (J) Sawant, P.B. Faizan Uddin (J)
1994 SCC Supl. (2) 445
K.K. Mohan, learned counsel for the respondents in all fairness has pointed out
that the decision of the Constitution Bench in Atam Prakash v. State of Haryana'
has settled that the right of preemption claimed by the plaintiff respondents
on the ground of kinship is no longer sustainable. Learned counsel, however,
submitted that the decree for possession having been executed and the
plaintiff-respondents having obtained possession on 15-12- 1984 prior to the
decision of the Constitution Bench in Atam Prakash v. State of Haryana1,
particularly when leave to file this appeal itself was granted after delivery
of the possession to the respondent, the observations of the Constitution Bench
at the end of the decision in Atam Prakash v. State of Haryana1 are available
to protect the decree in plaintiff's favour. The observations in Atam Prakash
v. State of Haryana1 at the end of the decision, which are relied upon by the
learned counsel are as under: (SCC p. 263, para 14) "We are told that in
some cases suits are pending in various courts and, where decrees have been
passed, appeals are pending in appellate courts. Such suits and appeals will
now be disposed of in accordance with the declaration granted by us. We are
told that there are a few cases where suits have been decreed and the decrees
have become final, no appeals having been filed against those decrees. The
decrees will be binding inter partes and the declaration granted by us will be
of no avail to the parties thereto."
our opinion, the words "where suits have been decreed and the decrees have
become final, no appeals having been filed against those decrees"
appearing in the above abstract do not refer to cases like the present since
the decree of the court below had not attained finality being under challenge
in the appeal which was pending at the time of the decision of the Constitution
Bench. The mere fact that possession had been delivered in execution of the
decree, which fact also appears to be disputed, does not, therefore, have the
effect of bringing this case within the category of cases where the decree had
attained finality because of there being no challenge in appeal thereto on the
date of the decision of the Constitution Bench. We are, therefore, unable to
accept the 1 (1986) 2 SCC 249: AIR 1986 SC 859 446 submission that
notwithstanding the decision of the Constitution Bench in Atam Prakash v. State
of Haryana1, the observations made at the end of that decision have the effect
of attaching finality to the decree under challenge in these appeals on the
date of the decision in Atam Prakash v. State of Haryana1. This being so, these
appeals have to be allowed.
Consequently, the appeals are allowed. The judgment and decrees of courts below
are set aside resulting in dismissal of the suit of the plaintiff respondents.
The parties shall bear their own costs throughout.