Mansu Vs.
Shadi Ram [1996] INSC 296 (20 February 1996)
Punchhi,
M.M.Punchhi, M.M.Sen, S.C. (J)
CITATION:
1996 AIR 1818 1996 SCC (3) 97 JT 1996 (3) 31 1996 SCALE (2)413
ACT:
HEAD NOTE:
O R D
E R
The
sole appellant having died, application for substitution is allowed.
The
appellant before us (now represented by his heirs and legal representatives) is
the plaintiff-pre-emptor. The respondent on the other side is the vendee. The
suit property was sold by a set of co-sharers, males as well as females. The appellant
staked claim to the suit property in exercise of his right of pre-emption based
on tenancy. The respondent resisted the suit contending that since the vendors
were both males and females, the share of the female vendors was not pre-emptable
in terms of Section 15(2) of the Punjab Pre-emption Act as applicable to the
State of Haryana. And, further, if the sale by
female vendors was not pre-emptable, he as a successors-in-interest became a
co- sharer in the suit land, and as such he had a superior right over the
plaintiff under Section 15(1) of the aforesaid Act.
The
Trial Court as also the lower appellate court went into oral and documentary
evidence adduced by the parties in coming to the firm conclusion that the
appellant being a tenant had a superior right of preemption in preference to
the respondent. The High Court allowed the second appeal of the
vendee-respondent and dismissed the suit of the appellant, on the premise that
when part of the sale effected by female vendors was not pre-emptable under
Section 15(2), then the vendee, as a co-sharer in his own right, had a right to
pre-empt the sale made by the male vendors under section 15(1) of the Act. It
is this view of the High Court which has been put to challenge before this
Court.
In Attam
Prakash vs. State of Haryana and Ors. [1986(2) SCC 249], this
Court has categorically struck down Section 15(2) of the Act as ultra vires the
Constitution. As referred to earlier, Section 15(2) applies to cases of sales
made by females. Due to the non obstante clause operating in Section 15(2),
those sales are not pre-emptable under Section 15(1) of the Act. When the right
of pre-emption under Section 15(2) is no longer available, it can now be
searched in Section 15(1) in so much as is left alive in Attam Prakash's case. Thereunder,
in clause `fourthly', the right of pre-emption vests in a co-sharer and then in
clause `fifthly', it vests in the tenant who holds under tenancy of the vendor
or vendors the land or property sold or a part thereof. Until the High Court
decision, the co-sharer had a superior right of pre-emption over the tenant. In
the meantime, however, by Haryana Amendment Act 10 of 1995 which came into
force on July 7, 1995, the right of pre-emption in favour
of the co-sharer has been withdrawn by causing necessary amendment in the
parent Act. The right of pre- emption now survives only in favour of the tenant
and not for any other. Thus, the superior claim of the respondent presently
stands snatched away from him by statutory amendment. This Court in Karan Singh
and others vs. Bhagwan Singh (D) by Lrs and others [1996(1) Scale 594] has
taken the view in this context that it would take judicial notice of the law as
prevailing on the date of the order or judgment and apply it to mould relief
accordingly. Following the same line of reasoning the respondent has to be
rendered defenceless in asserting his claim for pre-emption on the basis of co-sharership.
The
appellant on the other hand can only succeed on the basis of his tenancy right.
Mr. Harbans Lal, learned senior counsel for the respondent has made an effort
to convince us that the revenue record adduced in evidence in support of the
plea of tenancy is not reliable, especially when there are entries suggestive
of the fact, that the tenant was not in cultivating possession in part of the
land. These entries were examined by the courts below, and were reconciled in favour
of the tenant/appellant on the premise that there was a presumption in favour
of continuity of his possession and once it was conceded that the appellant was
the tenant over the land in dispute, he shall be presumed to have continued
thereafter unless by some cogent evidence or overt act it could be proved that
he abandoned the tenancy or was otherwise evicted in accordance with law. The
oral evidence goes to support the appellant that he continued to be in
possession till date. He, thus, has a right to maintain his possession under
the existing state of law in exercise of his right of pre-emption as a tenant.
For
the reasons stated above, the appeal is allowed, the judgment and order of the
High Court is set aside and that of the lower appellant court affirming that of
the trial court is restored. There shall be no order as to costs. Let the
pre-emption money be deposited by the appellant within sixty days from today,
if not already deposited, in terms of the decree of the trial court, failing
which the suit for pre-emption shall stand dismissed as also this appeal.
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