RSA No.2042 of 1996 1
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
R.S.A. No.2042 of 1996 (O&M)
Date of Decision:December 04 , 2009
Kamla ...........Appellant
Versus
Pawan Kumar and others ..........Respondents
Coram: Hon'ble Mrs. Justice Sabina
Present: Mr.Ashwani Talwar, Advocate
for the appellant
Mr.Surya Kant Gautam,Advocate for respondent No.1.
**
Sabina, J.
Plaintiff filed a suit for possession by way of pre-emption.
The suit of the plaintiffs was decreed by the Senior Sub Judge Panipat vide
judgment and decree dated 3.2.1994. Aggrieved by the same, defendants
filed an appeal and the same was allowed by the learned Additional
District Judge(I) Panipat vide judgment and decree dated 29.2.1996 and the
judgment and decree of the trial Court was set aside . Hence, the present
appeal by the plaintiff.
The case of the parties, as noticed by the learned Seniorl Sub
Judge, in paras 2 and 3 of its judgment reads as under:-
” 2. In brief, the case of the plaintiff is that Manga and
RSA No.2042 of 1996 2Smt.Natho, defendant no. 4 and 5, sold their share in the land
detailed and described above to defendants No.1 to 3 for a
consideration of Rs.40,000/- vide registered sale deed dated
11.7.91. According to the plaintiff, she is a co-sharer in the land
detailed and described above. No notice of sale was given to her.
Defendants no. 1 to 3 are totally strangers and had no share in the
suit land at the time of sale whereas the plaintiff being a co-sharer
in the suit land has superior right to pre-empt the sale. It has
further been pleaded by the plaintiff that previously, one Nekhi
son of Hardwari Lal was a co-sharer in the suit land to the extent
of 16/52 share. The plaintiff purchased the land from him on
15.7.1980 through a registered sale deed and thus, became a co-
sharer in the land in dispute. Thus, according to the plaintiff, she
being a co-sharer has a superior right to pre-empt the sale. Inspite
of having requested, the defendants have refused to accept the
claim of the plaintiff and have refused to deliver the possession of
the suit land to her on receipt of Rs.40,000/-. Hence, this suit.
3.In the written statement filed by the defendants, it has been
averred that the plaintiff is not a co-sharer in the suit land and has
no right, title or interest in the suit property, therefore, she has no
superior right to pre-empt the sale. In these circumstances, it has
been prayed that the suit of the plaintiff be dismissed. A number
of preliminary objections have also been taken, such as, the
plaintiff has no right, or interest in the suit property, the suit is bad
for misjoinder and non-joinder of necessary parties, the suit is
not maintainable in the present form and the plaintiff has no locus
RSA No.2042 of 1996 3standi to file the present suit. It has further been averred by the
defendants that the father of defendants no. 1 to 2 is a tenant on
the suit land. In these circumstances, the plaintiff has no superior
right to pre-empt the sale.”
On the pleadings of the parties, the following issues were
framed by the trial Court:-
“1.Whether the plaintiff has superior right of pre-emption?OPP
2.Whether the plaintiff has no locus standi ?OPD
3.Whether the plaintiff has no right or interest in suit
property?OPD
4.Whether the suit is bad for misjoinder and non-joinder of
necessary parties?OPD
5.Whether the suit is not maintainable?OPD
6. Relief.”
After hearing the learned counsel for the parties, I am of the
opinion that the present appeal deserves to be allowed.
Plaintiff-appellant had filed a suit for possession by way of
pre-emption. The case of the plaintiff was that on the day sale deed dated
11.6.1991 was executed by Manga and Matho, defendants No. 4 and 5, they
sold their share in the suit land to defendants No. 1 to 3. The question that
requires consideration is as to whether the plaintiff was a co-sharer on the
date of sale and till the suit filed by her was decided. There is no force in
the argument raised by the learned counsel for the respondents that on the
day of sale, the plaintiff was no longer a co-sharer in the suit property as the
property in question had already been partitioned. However, admittedly, the
plaintiff was not a party in the partition proceedings. In these
RSA No.2042 of 1996 4circumstances, the learned trial Court had rightly held that the partition
proceedings, if any, are not binding on the plaintiff. Plaintiff had purchased
share out of the suit property vide sale deed dated 15.7.1980. Mutation qua
the sale in favour of the plaintiff by Neki was sanctioned on 15.2.1989.
Hence, the plaintiff was rightly held to be a co-sharer in the suit property by
the learned trial Court and it was rightly held that she had superior rights to
pre-empt the sale.
The learned Additional District Judge, while allowing the
appeal filed by the defendants, held that since the Amending Act had come
into force that co-sharer will no longer pre-empt a sale, dismissed the suit of
the plaintiff. Initially, Punjab Pre-emption Act was applicable to the State
of Haryana. Section 15 was introduced by the Haryana Amendment Act,
1955. The same reads as under:-
“Section 15 of the Amending Act, whereby right of a
cosharer to pre empt a sale was taken away, reads as
under:-
” Right of pre-emption to vest in tenant- The right of
preemption in respect of sale of agricultural land and
village immovable property shall vest in tenant who
holds under tenancy of the vendor or vendors of the
land or property sold or a part thereof.”
The substantial question of law that arises in this case is as to
what is the effect of substituted Section 15 introduced by the Haryana
Amendment Act, 1955 (hereinafter referred to as ‘the Amending Act’) in the
parent Act i.e. Punjab Pre-emption Act (hereinafter referred to as ‘the parent
Act) as applicable to the State of Haryana with regard to the right of a co-
RSA No.2042 of 1996 5sharer to pre- empt a sale during the pendency of an appeal after the suit of
the co-sharer to pre- empt a sale has been decreed.
The controversy involved in this case is no longer resintegra. The
Apex Court in Shyam Sunder and another v. Ram Kumar and another
2001 (SC) 2472 has held that the Amending Act being prospective in
operation does not effect the rights of the parties to the litigation on the date
of adjudication of the pre-emption suit and the Appellate Court is not
required to take into account or give effect to the substituted Section 15
introduced by the Amending Act. The relevant paras of the aforesaid
judgment are reproduced herein as under:-
“11. An analysis of the aforesaid decisions referred to in first
category of decisions, the legal principles that emerges are these:
1. The pre-emptor must have the right to pre-empt the
sale on the date of filing of the suit and on the date of
passing of the decree by the Court of the first instance
only.
2. The pre-emptor who claims the right to pre-empt the
sale on the date of the sale must prove that such right
continued to subsist till the passing of the decree of the
first court. If the claimant loses that right or a vendee
improves his right equal or above the right of the
claimant before the adjudication of suit, the suit for
preemption must fall.
3. A pre-emptor who has a right to pre-empt a sale on
the date of institution of the suit and on the date of
passing of decree, the loss of such right subsequent to
RSA No.2042 of 1996 6the decree of the first Court would not affect his right or
maintainability of the suit for pre-emption.
4. A pre-emptor who after proving his right on the date
of sale, on the date of filing the suit and on the date of
passing of the decree by the first court, has obtained a
decree for pre-emption by the Court of first instance,
such right cannot be taken away by subsequent
legislation during pendency of the appeal filed against
the decree unless such legislation has retrospective
operation.
14.The legal position that emerges on review of the
second category of decisions is that the appeal being
continuation of suit the appellate court is required to
give effect to any change in law which has retrospective
effect.
35. During the course of argument, a half-hearted
argument was raised that a substituted Section in an Act
introduced by an amending Act is to be treated having
retroactive operation. According to the learned counsel
for the appellant, the function of a substituted section in
an Act is to obliterate the rights of the parties as if they
never existed. This argument is noted only to be
rejected. A substituted section in an Act is the product
of an amending Act and all the effects and consequence
that follow in the case of an amending Act the same
would also follow in the case of a substituted Section in
RSA No.2042 of 1996 7an Act.
36. Coming to the next question, learned counsel for the
appellants after characterising the right of preemption as
archaic and feudal, argued that substituted Section 15
being a beneficial legislation enacted for general benefit
of citizens, this Court while construing it, is required to
apply rule of benevolent construction and on
application of the said rule of construction the
substituted Section 15 has to be given retroactive
operation. Generally rules of interpretations are meant
to assist the Court in advancing the ends of justice. It
is,therefore, true in the case of application of rule of
benevolent construction also. If on application of ruleof
benevolent construction, the Court finds that it would
be doing justice within the parameters of law there
appears to be no reason why such rule of construction
be not applied in the present case. But there are
limitations on the powers of the Court, in a sense that
Courts in certain situations often refrain themselves to
apply rule of benevolent or liberal construction. The
judicial precedents have laid down that, ordinarily,
where and when the rule of benevolent construction is
required to be applied and not to be applied. One of the
situations is, when the Court finds that by application of
rule of benevolent construction it would be re-
legislating a provision of statute either by substituting,
RSA No.2042 of 1996 8adding or altering the words used in the provision of the
Act. In such a situation, generally Courts have refrained
themselves to apply rule of benevolent construction.
Under the cover of application of rule of benevolent
construction a Court is not entitled to re-legislate a
provision of the Act so construed. The second situation
is when the words used in a stature is capable of only
one meaning. In such a situation, the Courts have been
hesitant to apply the rule of benevolent construction.
But if it is found that the words used in the statute give
rise to more than one meaning, in such circumstances,
the Courts are not precluded to apply such rule of
construction. The third situation is when there is no
ambiguity in a provision of a statute so construed. If the
provision of a statute is plain, unambiguous and does
not give rise to any doubt, in such circumstances the
rule of benevolent construction has no application.
However, if it is found that there is a doubt in regard to
meaning of a provision or word used in provisions of an
enactment it is permissible for court to apply the rule of
benevolent construction to advance the object of the
Act. Ordinarily, the rule of benevolent construction to
advance the object of the Act. Ordinarily, the rule of
benevolent construction has been applied while
construing welfare legislations or provisions relating to
relationship between weaker and stronger contracting
RSA No.2042 of 1996 9parties. Assuming that the amending Act is for general
good of people, we do not find the presence of the
aforestated situations which may call for application of
such rule while constructing substituted Section 15
introduced by the amending Act. A reading of
substituted Section 15 would show that the words used
therein are plain and simple and there is no ambiguity in
it. The words used in the Section do not give rise to
more than one meaning. Further, we do not find that
amending Act either expressly or by necessary
implication is retrospective. If we hold that the
amending Act is retrospective in operation, we would
be re-legislating the enactment by adding words which
are to be found in the amending Act either expressly or
by necessary intendment and it would amount doing
violence with the spirit of the amending Act. For these
reasons, the application of rule of benevolent
construction is wholly inapplicable while construing
substituted Section 15.
40. Lastly, it was contended on behalf of the appellants
that the amending Act whereby new Section 15 of the
Act has been substituted is declaratory and,
therefore,has retroactive operation. Ordinarily when an
enactment declares the previous law, it requires to be
given retroactive effect. The function of a declaratory
statute is to supply an omission or explain previous
RSA No.2042 of 1996 10statute and when such an Act is passed, it comes into
effect when the previous enactment was passed. The
legislative power to enact law includes the power to
declare what was the previous law and when such a
declaratory Act is passed invariably it has been held to
be retrospective. Mere absence of use of word
‘declaration’ in an Act explaining what was the law
before may not appear to be a declaratory Act but if the
Courts finds an Act as declaratory or explanatory it has
to be construed as retrospective. Conversely where a
statute uses the word ‘ declaratory’ the words so used
may not be sufficient to hold that the statute is a
declaratory Act as words may be used in order to bring
into effect new law.
45. From the aforesaid decisions, the legal principle that
emerges is that the function of a declaratory or
explanatory Act is to supply an obvious omission or to
clear up doubts as to meaning of the previous Act and
such an Act comes into effect from the date of passing
of the previous Act. Learned counsel for the appellants
strongly relied upon a decision of two-Judges Bench of
this Court Mithilesh Kumari and another v. Prem
Behari Khare, 1989 (2) SCC 95 in support of his
argument. In the said decision, it was held by this Court
that the Benami Transactions (Prohibition) Act,1988
being a declaratory Act, the provision of Section4 of the
RSA No.2042 of 1996 11Act has retroactive operation. The reliance onthis
decision by the appellants’ counsel is totally misplaced
as this decision was overruled in R.Raja Gopal Reddy
v. Padmini Chandrasekharan (supra) wherein it was
held that, the Act was not passed to clear any doubt
existed as to the common law or the meaning of effect
of any statute and it was, therefore, not a declaratory
Act.
46. We have already quoted substituted Section 15 of
the amending Act but do not find that the amending Act
either expressly or by necessary implication intended to
supply an omission or to clear up a doubt as to the
meaning of previous Section 15 of the parent Act. The
previous Section 15 of the parent Act was precise, plain
and simple. There was no ambiguity in it. The meaning
of the words used in Section 15 of the parent Act was
never in doubt and there was no omission in its
phraseology which was required to be supplied by the
amending Act. Moreover, the amending Act either
expressly or by implication was not intended to be
retroactive and for that reason we hold that the
amending Act 10 of 1995 is not a declaratory Act and,
therefore, it has no retrospective operation.
47. For the aforestated reasons, we approve the view of
law taken in Didar Singh etc. v. Ishar Singh (dead) by
Lrs. etc. (supra) and further hold that the decision inthe
RSA No.2042 of 1996 12case of Ramjilal v. Ghisa Ram (supra) does not lay
down the correct view of law.
48. The result of the aforesaid discussion is that the
amending Act being prospective in operation does not
affect the rights of the parties to the litigation on the
date of adjudication of the pre-emption suit and the
appellate Court is not required to take into account or
give effect to the substituted Section 15 introduced by
the amending Act.”
Before the Appellate Court, there was nothing to suggest that the plaintiff
had ceased to be a co-sharer. Since vide the decision of a Bench of five
Judges in Shyam Sunder’s case (supra) in order to resolve conflict
between the decisions rendered by two different Benches, it has been held
that the Amending Act is prospective in operation and will not effect rights
of the parties in litigation on the date of adjudication of pre-emption suit
and the appellate Court is not required to take into account or give effect to
the substituted Section 15 introduced by the Amending Act, the present
appeal deserves to be allowed.
Accordingly, this appeal is allowed and the judgment and decree
of the learned Additional District Judge, Panipat whereby the suit of the
plaintiff was dismissed are set aside and the judgment and decree of the
Senior Sub Judge Panipat dated 3.2.1994, whereby the suit of the plaintiff
was decreed, are upheld.
( Sabina )
Judge
December 04 , 2009
arya
RSA No.2042 of 1996 13