PETITIONER: SMT. SHANTI DEVI & ANR Vs. RESPONDENT: HUKUM CHAND DATE OF JUDGMENT: 22/08/1996 BENCH: N.P.SINGH, K. VENKATASWAMI ACT: HEADNOTE: JUDGMENT:
O R D E R
These appeals have been filed, for setting aside the
order dated March 20, 1990, passed by the High Court
allowing the civil revision application which had been filed
on behalf of the respondent – decree holder.
There is no dispute that the land in question was
transferred in favour of the appellant No.1 by one Kishan
Chand and Jagdish Chand in the year 1980. Thereafter a suit
for pre-emption was filed on behalf of the respondent. That
suit was decreed on 27.8.1983. The appeal filed on behalf of
the appellants was dismissed by the court of appeal on
30.11.1983. Second appeal filed on behalf of the appellants
was also. dismissed by the High Court on 5.4.1984.
Thereafter, the decree holder – respondent took steps for
execution of the decree for pre-emption of the lands in
question in the year 1984. An objection was taken before the
executing court that as only share in the land in question
had been transferred the decree passed for pre-emption
cannot be executed. That objection found favour with the
executing court. Being aggrieved by the order passed by the
executing court the respondent filed civil revision before
the High Court which was allowed by the impugned order. The
High Court after referring to the earlier judgments of the
said court including the Full Bench judgment observed:
The proposition laid down in
the Full Bench judgment, referred
to above, has no applicability to
the facts of the present case. In
that case the question was as to
whether the sale was of specific
khasra No. out of the joint land.
The question of getting the
physical possession of the specific
khasra nos. out of the joint
holding is governed by the
provisions of the Code of Civil
Procedure, which provides as to how
the decree for immovable property
is to be executed. Admittedly, the
decree is for specific khasra nos.
which were sold to the vendee by
the vendor. That being so, the
decree-holder is entitled to the
physical possession of the specific
khasra nos. though it may be open
to the judgment debtors to make
adjustments at the time of
partition, if any.”
Faced with this situation aforesaid, on behalf of the
appellants it was submitted before the High Court that as
the relevant provisions of the Punjab Pre-emption Act, 1913
had been declared to be unconstitutional by the Constitution
Bench of this Court in the case of Atam Prakash v. State of
Haryana & Ors., reported in 1986 (2) SCC 249, the decree
passed in the suit for pre-emption filed on behalf of the
respondent shall be deemed to be nullity and as such decree
cannot be executed. The High Court rejected the said
objection. This Court in the case of Atam Prakash v.State of
Haryana & Ors has specifically said in respect of decrees
which had become final as follows:
“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 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-parties and the
declaration granted by us will be
of no avail to the parties
thereto.”
(emphasis supplied)
It is, therefore, apparent that where the suits have been
decreed and such decrees have become final since no appeals
have been filed against the same, the said decrees are
binding inter-parties and the declaration made by the
Supreme Court is of no avail to the parties thereto.
In the present case as mentioned above the suit for
pre-emption was decreed on 27.8.1983. That decree was
affirmed by the court of appeal on 30.11.1983. The second
appeal filed before the High Court against the judgment and
decree of the trial court and the court of appeal was
dismissed on 5.4.1984. It is admitted position that at no
stage the appellants questioned the validity of the decree
question before this Court. We are informed that after 12
years in the year 1996, a Special Leave Petition has been
filed against order dated 5.4.1984 passed in the second
appeal by the High Court. However, the fact remains that
when the High Court allowed the civil revision filed on
behalf of the respondent on 20.3.1990 the decrees of the
trial court, the court of appeal and the High Court in
second appeal had become final. As such the direction of
this Court in Atam Prakash’s case (supra) that such decrees
shall be binding inter-parties notwithstanding the
declaration of this Court in the aforesaid judgment, was
fully applicable in the present case. The High Court has
rightly come to the conclusion that notwithstanding the
judgment of the Constitution Bench in the case of Atam
Prakash (supra) the decree in the suit for pre-emption filed
on behalf of the respondent was binding between the parties.
On behalf of the appellants our attention was drawn to
the substituted Section 15 in the Punjab Preemption Act,
1913 which has been notified on 7th May, 1995 and it was
urged that after the said amendment no right of pre-emption
can be enforced. Section 15 which has been substituted is as
follows:
“15. Right of pre-emption to vest
in tenant:-
The right of Pre-emption in respect
of sale of agricultural land and
village immovable property shall
vest in the tenant who holds under
tenancy of the vendors the land or
property sold or a part thereof.”
On a plain reading the aforesaid section has been
introduced prospectively and there is no question of the
said section affecting in any manner the judgment and decree
passed in the suit for pre-emption as early as in the year
1983 affirmed by the High Court in the second appeal in the
year 1984.
According to us the impugned order passed by the High
Court is in terms of the direction given by this Court in
the judgment of the Constitution Bench in Atam Prakash case
(supra) and we find no reason to take a contrary view. These
appeals are accordingly dismissed. No costs.