JUDGMENT
Vinod K. Sharma, J.
1. The plaintiff-appellant had filed a suit against Ram Singh and others for possession by pre-emption of agricultural land measuring 19 kanals 11 marlas as fully described in the head note of the plaint.
2. It was claimed by Om Parkash that Ramji Lal as owner in possession of the suit land measuring 19 kanals 11 marls and fully described in the head note of the plaint, sold the same to vendee-defendants Ram Singh and others for a sum of Rs. 10,000/- (Rs. ten thousand only) though an exaggerated amount of Rs. 15,000/- (Rs. fifteen thousand only) was recorded in the sale-deed as sale price. The sale-deed was registered on 11.12.1979.
3. The plaintiff-appellant claimed the right of pre-emption being real son of vendor defendant and, therefore, claimed his preferential right to pre-empt the sale.
4. The suit was contested by the defendants by raising preliminary objections as well as on merit, it was claimed that defendant Nos. l to 4 were tenants over the suit land at the time of its sale to them by Ramji Lal. However, the sale by Ramji Lal to vendee defendants was admitted, however, the relationship of plaintiff with the vendor was denied. It was further claimed that the suit land was in possession of the vendee-defendants as they cultivated the land from Rabi 1975 to Rabi 1979 and it was further claimed that girdwari of the suit land was also entered in favour of father of the vendee i.e. Shri Jug Lal. It was reiterated in the written statement that the sale price of Rs. 15,000/- (Rs. fifteen thousand) as recorded in the sale-deed was fixed in good faith and actually paid. It was claimed that the vendee defendant had incurred expenses on account of registration and stamp charges which was required to be refunded in case the suit was to be decreed.
5. The learned trial Court by observing that the appellant plaintiff had a right to preempt the sale on the date of sale as also on the date of filing of the suit as well as on the date of passing of the decree, decreed the suit for pre-emption. The learned trial Court also held that the plaintiff-appellant had proved on record that right to pre-empt continued till passing of the decree of the first Court. The defendant-respondents preferred an appeal against the judgment and decree passed by the learned trial Court. The learned lower Appellate Court accepted the appeals on the ground that the defendant-respondents have proved on record that they were tenant on the land in dispute. The plaintiff-appellant had come in a Regular Second Appeal against the order. The appeal filed by the plaintiff-appellant was dismissed by this Court on 18.1.2005. However, appeal against the said judgment passed by this Court was allowed by the Hon’ble Supreme Court on 24.2.2006 by observing as under:
Leave granted.
In this case limited notice was issued as to why the impugned order of the High Court should not be set aside and the matter be remanded back to the High Court to consider afresh after framing substantial question of law.
We have heard the parties. In this case the High Court upheld the trial Court order and dismissed the second appeal without framing any substantial question of law. We, accordingly, set aside the impugned order and remand the matter back to the High Court for a fresh decision after framing substantial question of law, if any. Since, the matter is pending for quite long time, the High Court is requested to dispose of the appeal as expeditiously as possible preferably within three months from today.
Status quo as of today shall be maintained till the appeal is disposed of by the High Court. The appeal is disposed of accordingly.
6. In pursuance to the remand order the following substantial question of law has been framed in this appeal:
Whether in view of the declaration of Section 15(1)(a) and whole of Section 15(2) having been declared ultra vires by the Hon’ble Supreme Court, there is any right of pre-emption left with the plaintiff-appellant?
7. The learned Counsel appearing on behalf of the appellant has contended that in view of the judgment of the Hon’ble Supreme Court in the case of Shyam Sunder and Anr. v. Ram Kumar and Anr. , the appeal filed by the appellant deserves to be allowed as he fulfilled the following conditions for maintaining the suit for pre-emption:
1. The pre-emptor must have the right to pre-empt on the date of 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 improved his right, equal or above the right of the claimant before the adjudication of suit, the suit for pre-emption must fail.
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 the 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.
According to the learned Counsel for the appellant the judgment of the Hon’ble Supreme Court in the case of Atom Parkash v. State of Haryana and Ors. (1986-1) 89 P.L.R. 329 (S.C.) would not be applicable to the facts of the present case as on the date of passing of the decree by the Court he fulfilled all the conditions.
8. Mr. Arun Jain, learned Counsel appearing on behalf of the respondents, however, controverted the arguments raised by the learned Counsel for the appellant by contending that conditions with regard to pre-emption by the relative would not be changed advance the case of appellant in view of the judgment of the Hon’ble Supreme Court in the case of Shyam Sunder and Anr. v. Ram Kumar and Anr. (supra) as Section 15(1)(a) and Section 15(2) of the Act itself have been declared as ultra vires the Constitution of India, as declaration of law to ultra vires would always be read to be retrospective and, therefore, the contention of the learned Counsel for the appellant that the pending suit would not be effected, cannot be accepted. I find force, in the contention raised by the learned Counsel for the respondents. As a consequence of declaration of law being ultra vires the Constitution the law takes out the law from the statute books and said provision cannot be relied upon for any purpose whatsoever and, therefore, the appellant has no right of pre-emption and, therefore, was not entitled to any decree as claimed by him.
9. In view of what has been stated above, the substantial question of law as framed is answered as under:
That in view of the declaration of Section 15(1)(a) and Section 15(2) of the Pre-emption Act to be ultra vires the Constitution of India, the appellant plaintiff was not entitled to maintain the suit for pre-emption. The decree passed by learned lower appellate Court, therefore, is to be upheld on this ground, though the reasons given by learned Court were different in dismissing the appeal. Mo ground for interference is made out.
Dismissed.