JUDGMENT
Satish Kumar Mittal, J.
1. This is defendants Regular Second Appeal against the judgment of reversal dated 14.3.1985 passed by the learned Additional District Judge, Faridabad, vide which after setting aside the judgment and decree of the trial Court the suit of the plaintiff-respondent for pre-emption of the sale deed in question has been decreed.
2. The instant suit was filed by the plaintiff-respondent for possession by way of pre-emption of the land in question which was sold by Smt. Gokli Bai and Ved Parkash (vendors) to the appellants vide registered sale deed dated 14.2.1979. Vide the said sale deed, 15 marlas of land out of killa No. 25//18/l measuring 2 kanals 12 marlas was sold by the aforesaid vendors for a consideration of Rs. 1.000/-. The aforesaid suit for preemption was filed on the plea that the plaintiff-respondent was co-sharer in the land in question and, thus, was having a superior right to pre-empt the impugned sale as he had already purchased 1 kanal 15 marlas of land from the same vendors and from the same khasra number vide registered sale deed dated 11.7.1977 (Ex.P1).
3. The defendant-appellants (vendees) contested the said suit on the ground that the plaintiff-respondent was not the co-sharer in the land in question and thus he was having no superior right of pre-emption. In this regard, it was submitted that vide sale deed Ex.P1, plaintiff purchased specific portion of the land comprising in western part of killa No. 25//18/l measuring 1 kanals 15 marlas. By the said purchase, he did not become co-sharer in the land comprising in killa No. 25//18/l. Secondly, prior to the sale deed Ex.Pl by the plaintiff-respondent, one of the appellant, namely, Isa alias Hesa had also purchased 5 marlas of land from the said khasra number vide sale deed dated 16.7.1976 (Ex.D2) and by that purchase, the appellants had also become co-sharers in the suit land,therefore, their status became equivalent to that of the plaintiff.
4. The trial court accepted the aforesaid two contention of the appellants and dismissed the suit of the plaintiff-respondent. On appeal, the said judgment and decree passed by the trial court was set aside by the first Appellate Court and the suit of the plaintiff was decreed.On the first point, it was held that though the plaintiff had purchased specific portion of killa No. 25//18/1 by sale deed Ex.Pl but merely because he had purchased a specific portion of the khasra number, it cannot be said that he had not become co-sharer in the said Khasra number. The first Appellate Court came to the said conclusion on the basis of the law laid by the Full Bench of this Court in Bhartu v. Ram Sarup, 1981 P.L.J. 204 wherein it was held that the sale of a specific portion of the land out of the joint land will deem to be sale of the share of the joint land irrespective of the fact whether the land sold is fractional share or specified portion comprised of particular khasra numbers. On the second point, it was held that though one of the appellant-vendees, namely, Isa alias Hesa had purchased a part of the Khasra number in question vide sale deed dated 16.7.1976 (Ex.D2) yet it did not enable the said vendee to defeat the superior right of the plaintiff-respondent because he had purchased the land in question by associating with himself one Makhmul (one of the appellant), who was not a co-sharer in the said land. While relying upon another Full Bench decision of this Court in Garib Singh v. Harnam Singh and Ors., 1971 Revenue Law Reporter 706, it was held that by associating Makhmul in the impugned sale, who was not a co-sharer in the land in suit, the appellant Isa alia Hesa had sunk to the level of Makhmul, a stranger to the land in suit, in such situation, the vendee forfeits his right to resist per-emptors suit.
5. Sh. Kamal Sharma, learned counsel for the appellant, could not point any illegality in the aforesaid conclusion drawn by the first Appellate Court. However, he argued that the impugned sale was made by Smt. Gokli Bai and her son Ved Parkash, therefore, the sale was governed by the provisions of Section 15(2) of the Punjab Pre-emption Act, 1913 (hereinafter referred to as ‘the Act’) and not by Section 15(1) of the Act being sale by a female, who had inherited the property from her husband, father or brother. He submitted that this plea was raised by the vendees-appellants before the Courts below, but the same was not considered because no such plea was taken by the appellants in the written statement. He further submitted that before the first Appellate Court, the appellants filed an application for amendment of the written statement to take the said plea, but their application was dismissed by the first Appellate Court vide order dated 1.3.1985 and soon thereafter the main appeal was also decided against them on 14.3.1985. The learned counsel for the appellants submitted that he has also challenged the propriety of the said order in this appeal and prayed that the proposed amendment should be allowed and the case be remanded on this issue whether the impugned sale is governed by Section 15(2) of the Act or not.
6. I do not find any merit in the aforesaid contention of the learned counsel for the appellants, Firstly, because of provisions of Section 15(2) of the Act were declared unconstitutional and were struck down by the Hon’ble Supreme Court in Atam Parkash v. State of Haryana? (1986-1)89 P.L.R. 329 (S.C.). And Secondly in Nand Kishore v. Avtar Singh, 1988 P.L.J. 47, the Hon’ble Supreme Apex Court has held that when a sale is made by a female and a male, a co-sharer is entitled to pre-empt the sale made by both under Section 15(1) of the Act as Section 15(2) of the Act has been declared to be ultra vires. It was also held that Section 15(1) of the Act applies to all sales, whether made by a female or a male and Section 15(2) of the Act was an exception to it when sale was made by a female, who had succeeded the land through her husband or through her son, in case the son had inherited the land from his father or was of land which she had succeeded through her father or brother. The right of pre-emption under both the circumstances was given to certain named relations. The right of pre-emption under Section 15(2) of the Act had been struck down with the result that the section stands wiped out and under Section 15(1) of the Act, as stated by the Hon’ble Supreme Court in the aforesaid decision, the pre-emptor as a co-sharer in entitled to pre-empt the entire sale.
7. In view of the aforesaid legal position, there was no justification and reason even to allow the prayer of the appellants’to amend the written statement. Rather, it will be a futile exercise.
8. For the reasons recorded above, I find no merit in this appeal and the same is hereby dismissed with no order as to costs.