{"id":115898,"date":"2009-12-04T00:00:00","date_gmt":"2009-12-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kamla-vs-pawan-kumar-and-others-on-4-december-2009"},"modified":"2016-05-11T01:16:43","modified_gmt":"2016-05-10T19:46:43","slug":"kamla-vs-pawan-kumar-and-others-on-4-december-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kamla-vs-pawan-kumar-and-others-on-4-december-2009","title":{"rendered":"Kamla vs Pawan Kumar And Others on 4 December, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Kamla vs Pawan Kumar And Others on 4 December, 2009<\/div>\n
RSA No.2042 of 1996                                                          1\n\nIN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH\n\n                                R.S.A. No.2042 of 1996 (O&M)\n                                Date of Decision:December 04 , 2009\n\n\n\n\nKamla                                               ...........Appellant\n\n\n\n\n                                Versus\n\n\n\n\nPawan Kumar and others                               ..........Respondents\n\n\n\nCoram:       Hon'ble Mrs. Justice Sabina\n\nPresent: Mr.Ashwani Talwar, Advocate\n         for the appellant\n         Mr.Surya Kant Gautam,Advocate for respondent No.1.\n                           **\n\nSabina, J.\n<\/pre>\n
                 Plaintiff filed a suit for possession by way of pre-emption.<\/p>\n
The suit of the plaintiffs was decreed by the Senior Sub Judge Panipat vide<\/p>\n
judgment and decree dated 3.2.1994. Aggrieved by the same, defendants<\/p>\n
filed an appeal and the same was allowed           by the learned Additional<\/p>\n
District Judge(I) Panipat vide judgment and decree dated 29.2.1996 and the<\/p>\n
judgment and decree of the trial Court was set aside . Hence, the present<\/p>\n
appeal by the plaintiff.\n<\/p>\n
                 The case of the parties, as noticed by the learned Seniorl Sub<\/p>\n
Judge, in paras 2 and 3 of its judgment reads as under:-<\/p>\n
          ” 2.     In brief, the case of the plaintiff is that Manga and
\n RSA No.2042 of 1996                                                             2<\/span><\/p>\n
         Smt.Natho, defendant no. 4 and 5, sold their share in the land<\/p>\n
         detailed and described above to defendants No.1 to 3 for a<\/p>\n
         consideration of Rs.40,000\/- vide registered sale deed dated<\/p>\n
         11.7.91. According to the plaintiff, she is a co-sharer in the land<\/p>\n
         detailed and described above. No notice of sale was given to her.<\/p>\n
         Defendants no. 1 to 3 are totally strangers and had no share in the<\/p>\n
         suit land at the time of sale whereas the plaintiff being a co-sharer<\/p>\n
         in the suit land has superior right to pre-empt the sale. It has<\/p>\n
         further been pleaded by the plaintiff that previously, one Nekhi<\/p>\n
         son of Hardwari Lal was a co-sharer in the suit land to the extent<\/p>\n
         of 16\/52 share. The plaintiff purchased the land from him on<\/p>\n
         15.7.1980 through a registered sale deed and thus, became a co-<\/p>\n
         sharer in the land in dispute. Thus, according to the plaintiff, she<\/p>\n
         being a co-sharer has a superior right to pre-empt the sale. Inspite<\/p>\n
         of having requested, the defendants have refused to accept the<\/p>\n
         claim of the plaintiff and have refused to deliver the possession of<\/p>\n
         the suit land to her on receipt of Rs.40,000\/-. Hence, this suit.<\/p>\n
         3.In the written statement filed by the defendants, it has been<\/p>\n
         averred that the plaintiff is not a co-sharer in the suit land and has<\/p>\n
         no right, title or interest in the suit property, therefore, she has no<\/p>\n
         superior right to pre-empt the sale. In these circumstances, it has<\/p>\n
         been prayed that the suit of the plaintiff be dismissed. A number<\/p>\n
         of preliminary objections have also been taken, such as, the<\/p>\n
         plaintiff has no right, or interest in the suit property, the suit is bad<\/p>\n
         for misjoinder     and non-joinder of necessary parties, the suit is<\/p>\n
         not maintainable in the present form and the plaintiff has no locus
\n RSA No.2042 of 1996                                                           3<\/span><\/p>\n
          standi to file the present suit. It has further been averred by the<\/p>\n
          defendants that the father of defendants no. 1 to 2 is a tenant on<\/p>\n
          the suit land. In these circumstances, the plaintiff has no superior<\/p>\n
          right to pre-empt the sale.”\n<\/p><\/blockquote>\n
               On the pleadings of the parties, the following issues were<\/p>\n
framed by the trial Court:-\n<\/p><\/blockquote>\n
          “1.Whether the plaintiff has superior right of pre-emption?OPP<\/p>\n<\/blockquote>\n
          2.Whether the plaintiff has no locus standi ?OPD<\/p>\n<\/blockquote>\n
          3.Whether the plaintiff has no right or interest in suit<\/p>\n
          property?OPD<\/p>\n<\/blockquote>\n
          4.Whether the suit is bad for misjoinder and non-joinder of<\/p>\n
          necessary parties?OPD<\/p>\n<\/blockquote>\n
          5.Whether the suit is not maintainable?OPD<\/p>\n<\/blockquote>\n
          6. Relief.”<\/p><\/blockquote>\n
\n<\/blockquote>\n
               After hearing the learned counsel for the parties, I am of the<\/p>\n
opinion that the present appeal deserves to be allowed.<\/p><\/blockquote>\n
               Plaintiff-appellant had filed a suit for possession by way of<\/p>\n
pre-emption. The case of the plaintiff was that on the day sale deed dated<\/p>\n
11.6.1991 was executed by Manga and Matho, defendants No. 4 and 5, they<\/p>\n
sold their share in the suit land to defendants No. 1 to 3. The question that<\/p>\n
requires consideration is as to whether the plaintiff was a co-sharer on the<\/p>\n
date of sale and till the suit filed by her was decided. There is no force in<\/p>\n
the argument raised by the learned counsel for the respondents that on the<\/p>\n
day of sale, the plaintiff was no longer a co-sharer in the suit property as the<\/p>\n
property in question had already been partitioned. However, admittedly, the<\/p>\n
plaintiff was not a party in the partition proceedings.               In these
\n RSA No.2042 of 1996                                                          4<\/span><\/p>\n
circumstances, the learned trial Court had rightly held that the partition<\/p>\n
proceedings, if any, are not binding on the plaintiff. Plaintiff had purchased<\/p>\n
share out of the suit property vide sale deed dated 15.7.1980. Mutation qua<\/p>\n
the sale in favour of the plaintiff by Neki was sanctioned on 15.2.1989.<\/p>\n
Hence, the plaintiff was rightly held to be a co-sharer in the suit property by<\/p>\n
the learned trial Court and it was rightly held that she had superior rights to<\/p>\n
pre-empt the sale.\n<\/p>\n
               The learned Additional District Judge, while allowing the<\/p>\n
appeal filed by the defendants, held that since the Amending Act had come<\/p>\n
into force that co-sharer will no longer pre-empt a sale, dismissed the suit of<\/p>\n
the plaintiff. Initially, Punjab Pre-emption Act was applicable to the State<\/p>\n
of Haryana.    Section 15 was introduced by the Haryana Amendment Act,<\/p>\n
1955. The same reads as under:-\n<\/p>\n
                      “Section 15 of the Amending Act, whereby right of a<\/p>\n
                      cosharer to pre empt a sale was taken away, reads as<\/p>\n
                      under:-\n<\/p><\/blockquote>\n
                      ” Right of pre-emption to vest in tenant- The right of<\/p>\n
                      preemption in respect of sale of agricultural land and<\/p>\n
                      village immovable property shall vest in tenant who<\/p>\n
                      holds under tenancy of the vendor or vendors of the<\/p>\n
                      land or property sold or a part thereof.”<\/p><\/blockquote>\n
          The substantial question of law that arises in this case is as to<\/p>\n
what is the effect of substituted Section 15 introduced by the Haryana<\/p>\n
Amendment Act, 1955 (hereinafter referred to as ‘the Amending Act’) in the<\/p>\n
parent Act i.e. Punjab Pre-emption Act (hereinafter referred to as ‘the parent<\/p>\n
Act) as applicable to the State of Haryana with regard to the right of a co-
\n RSA No.2042 of 1996                                                                5<\/span><\/p>\n
sharer to pre- empt a sale during the pendency of an appeal after the suit of<\/p>\n
the co-sharer to pre- empt a sale has been decreed.<\/p>\n
          The controversy involved in this case is no longer resintegra. The<\/p>\n
Apex Court in Shyam Sunder and another v. Ram Kumar and another<\/p>\n
2001 (SC) 2472 has held that the Amending Act being prospective in<\/p>\n
operation does not effect the rights of the parties to the litigation on the date<\/p>\n
of adjudication of the pre-emption suit and the Appellate Court is not<\/p>\n
required to take into account or give effect to the substituted Section 15<\/p>\n
introduced by the Amending Act. The relevant paras of the aforesaid<\/p>\n
judgment are reproduced herein as under:-\n<\/p>\n
          “11. An analysis of the aforesaid decisions referred to in first<\/p>\n
          category of decisions, the legal principles that emerges are these:<\/p>\n<\/blockquote>\n
                      1. The pre-emptor must have the right to pre-empt the<\/p>\n
                      sale on the date of filing of the suit and on the date of<\/p>\n
                      passing of the decree by the Court of the first instance<\/p>\n
                      only.\n<\/p><\/blockquote>\n
                      2. The pre-emptor who claims the right to pre-empt the<\/p>\n
                      sale on the date of the sale must prove that such right<\/p>\n
                      continued to subsist till the passing of the decree of the<\/p>\n
                      first court. If the claimant loses that right or a vendee<\/p>\n
                      improves his right equal or above the right of the<\/p>\n
                      claimant before the adjudication of suit, the suit for<\/p>\n
                      preemption must fall.\n<\/p><\/blockquote>\n
                      3. A pre-emptor who has a right to pre-empt a sale on<\/p>\n
                      the date of institution of the suit and on the date    of<\/p>\n
                      passing of decree, the loss of such right subsequent to
\n RSA No.2042 of 1996                                                              6<\/span><\/p>\n
                      the decree of the first Court would not affect his right or<\/p>\n
                      maintainability of the suit for pre-emption.<\/p>\n<\/blockquote>\n
                      4. A pre-emptor who after proving his right on the date<\/p>\n
                      of sale, on the date of filing the suit and on the date of<\/p>\n
                      passing of the decree by the first court, has obtained a<\/p>\n
                      decree for pre-emption by the Court of first instance,<\/p>\n
                      such right cannot be taken away by subsequent<\/p>\n
                      legislation during pendency of the appeal filed against<\/p>\n
                      the decree unless such legislation has retrospective<\/p>\n
                      operation.\n<\/p><\/blockquote>\n
                      14.The legal     position that emerges on review of the<\/p>\n
                      second category of decisions is that the appeal        being<\/p>\n
                      continuation of suit the appellate court is required      to<\/p>\n
                      give effect to any change in law which has retrospective<\/p>\n
                      effect.\n<\/p><\/blockquote>\n
                      35. During the course of argument, a half-hearted<\/p>\n
                      argument was raised that a substituted Section in an Act<\/p>\n
                      introduced by an amending Act is to be treated having<\/p>\n
                      retroactive operation. According to the learned counsel<\/p>\n
                      for the appellant, the function of a substituted section in<\/p>\n
                      an Act is to obliterate the rights of the parties as if they<\/p>\n
                      never existed. This argument is noted only to be<\/p>\n
                      rejected. A substituted section in an Act is the product<\/p>\n
                      of an amending Act and all the effects and consequence<\/p>\n
                      that follow in the case of an amending Act the same<\/p>\n
                      would also follow in the case of a substituted Section in
\n RSA No.2042 of 1996                                                            7<\/span><\/p>\n
                      an Act.\n<\/p><\/blockquote>\n
                      36. Coming to the next question, learned counsel for the<\/p>\n
                      appellants after characterising the right of preemption as<\/p>\n
                      archaic and feudal, argued that substituted Section     15<\/p>\n
                      being a beneficial legislation enacted for general benefit<\/p>\n
                      of citizens, this Court while construing it, is required to<\/p>\n
                      apply     rule   of   benevolent   construction   and   on<\/p>\n
                      application of the said rule of construction the<\/p>\n
                      substituted Section 15 has to be given retroactive<\/p>\n
                      operation. Generally rules of interpretations are meant<\/p>\n
                      to assist the Court in advancing the ends of justice. It<\/p>\n
                      is,therefore, true in the case of application of rule of<\/p>\n
                      benevolent construction also. If on application of ruleof<\/p>\n
                      benevolent construction, the Court finds that it would<\/p>\n
                      be doing justice within the parameters of law there<\/p>\n
                      appears to be no reason why such rule of construction<\/p>\n
                      be not applied in the present case. But there are<\/p>\n
                      limitations on the powers of the Court, in a sense that<\/p>\n
                      Courts in certain situations often refrain themselves to<\/p>\n
                      apply rule of benevolent or liberal construction. The<\/p>\n
                      judicial precedents have laid down that, ordinarily,<\/p>\n
                      where and when the rule of benevolent construction is<\/p>\n
                      required to be applied and not to be applied. One of the<\/p>\n
                      situations is, when the Court finds that by application of<\/p>\n
                      rule of benevolent construction it would be re-<\/p>\n
                      legislating a provision of statute either by substituting,
\n RSA No.2042 of 1996                                                           8<\/span><\/p>\n
                      adding or altering the words used in the provision of the<\/p>\n
                      Act. In such a situation, generally Courts have refrained<\/p>\n
                      themselves to apply rule of benevolent construction.<\/p>\n
                      Under the cover of application of rule of benevolent<\/p>\n
                      construction a Court is not entitled to re-legislate a<\/p>\n
                      provision of the Act so construed. The second situation<\/p>\n
                      is when the words used in a stature is capable of only<\/p>\n
                      one meaning. In such a situation, the Courts have been<\/p>\n
                      hesitant to apply the rule of benevolent construction.<\/p>\n
                      But if it is found that the words used in the statute give<\/p>\n
                      rise to more than one meaning, in such circumstances,<\/p>\n
                      the Courts are not precluded to apply such rule of<\/p>\n
                      construction. The third situation is when there is no<\/p>\n
                      ambiguity in a provision of a statute so construed. If the<\/p>\n
                      provision of a statute is plain, unambiguous and does<\/p>\n
                      not give rise to any doubt, in such circumstances the<\/p>\n
                      rule of benevolent construction has no application.<\/p>\n
                      However, if it is found that there is a doubt in regard to<\/p>\n
                      meaning of a provision or word used in provisions of an<\/p>\n
                      enactment it is permissible for court to apply the rule of<\/p>\n
                      benevolent construction to advance the object of the<\/p>\n
                      Act. Ordinarily, the rule of benevolent construction to<\/p>\n
                      advance the object of the Act. Ordinarily, the rule of<\/p>\n
                      benevolent construction has been applied while<\/p>\n
                      construing welfare legislations or provisions relating to<\/p>\n
                      relationship between weaker and stronger contracting
\n RSA No.2042 of 1996                                                             9<\/span><\/p>\n
                      parties. Assuming that the amending Act is for general<\/p>\n
                      good of people, we do not find the presence of the<\/p>\n
                      aforestated situations which may call for application of<\/p>\n
                      such rule while constructing substituted Section 15<\/p>\n
                      introduced by the amending Act. A reading of<\/p>\n
                      substituted Section 15 would show that the words used<\/p>\n
                      therein are plain and simple and there is no ambiguity in<\/p>\n
                      it. The words used in the Section do not give rise to<\/p>\n
                      more than one meaning. Further, we do not find that<\/p>\n
                      amending Act either expressly or by necessary<\/p>\n
                      implication is retrospective. If we hold that the<\/p>\n
                      amending Act is retrospective in operation, we would<\/p>\n
                      be re-legislating the enactment by adding words which<\/p>\n
                      are to be found in the amending Act either expressly or<\/p>\n
                      by necessary intendment and it would amount doing<\/p>\n
                      violence with the spirit of the amending Act. For these<\/p>\n
                      reasons,    the   application   of   rule   of   benevolent<\/p>\n
                      construction is wholly inapplicable while construing<\/p>\n
                      substituted Section 15.\n<\/p><\/blockquote>\n
                      40. Lastly, it was contended on behalf of the appellants<\/p>\n
                      that the amending Act whereby new Section 15 of the<\/p>\n
                      Act   has    been    substituted     is   declaratory   and,<\/p>\n
                      therefore,has retroactive operation. Ordinarily when an<\/p>\n
                      enactment declares the previous law, it requires to be<\/p>\n
                      given retroactive effect. The function of a declaratory<\/p>\n
                      statute is to supply an omission or explain previous
\n RSA No.2042 of 1996                                                          10<\/span><\/p>\n
                      statute and when such an Act is passed, it comes into<\/p>\n
                      effect when the previous enactment was passed. The<\/p>\n
                      legislative power to enact law includes the power to<\/p>\n
                      declare what was the previous law and when such a<\/p>\n
                      declaratory Act is passed invariably it has been held to<\/p>\n
                      be retrospective. Mere absence of use of word<\/p>\n
                      ‘declaration’ in an Act explaining what was the law<\/p>\n
                      before may not appear to be a declaratory Act but if the<\/p>\n
                      Courts finds an Act as declaratory or explanatory it has<\/p>\n
                      to be construed as retrospective. Conversely where a<\/p>\n
                      statute uses the word ‘ declaratory’ the words so used<\/p>\n
                      may not be sufficient to hold that the statute is a<\/p>\n
                      declaratory Act as words may be used in order to bring<\/p>\n
                      into effect new law.\n<\/p><\/blockquote>\n
                      45. From the aforesaid decisions, the legal principle that<\/p>\n
                      emerges is that the function of a declaratory or<\/p>\n
                      explanatory Act is to supply an obvious omission or to<\/p>\n
                      clear up doubts as to meaning of the previous Act and<\/p>\n
                      such an Act comes into effect from the date of passing<\/p>\n
                      of the previous Act. Learned counsel for the appellants<\/p>\n
                      strongly relied upon a decision of two-Judges Bench of<\/p>\n
                      this Court Mithilesh Kumari and another v. Prem<\/p>\n
                      Behari Khare, 1989 (2) SCC 95 in support of his<\/p>\n
                      argument. In the said decision, it was held by this Court<\/p>\n
                      that the Benami Transactions (Prohibition) Act,1988<\/p>\n
                      being a declaratory Act, the provision of Section4 of the
\n RSA No.2042 of 1996                                                          11<\/span><\/p>\n
                      Act has retroactive operation. The reliance onthis<\/p>\n
                      decision by the appellants’ counsel is totally misplaced<\/p>\n
                      as this decision was overruled in R.Raja Gopal Reddy<\/p>\n
                      v. Padmini Chandrasekharan<\/a> (supra) wherein it was<\/p>\n
                      held that, the Act was not passed to clear any doubt<\/p>\n
                      existed as to the common law or the meaning of effect<\/p>\n
                      of any statute and it was, therefore, not a declaratory<\/p>\n
                      Act.\n<\/p><\/blockquote>\n
                      46. We have already quoted substituted Section 15 of<\/p>\n
                      the amending Act but do not find that the amending Act<\/p>\n
                      either expressly or by necessary implication intended to<\/p>\n
                      supply an omission or to clear up a doubt as to the<\/p>\n
                      meaning of previous Section 15 of the parent Act. The<\/p>\n
                      previous Section 15 of the parent Act was precise, plain<\/p>\n
                      and simple. There was no ambiguity in it. The meaning<\/p>\n
                      of the words used in Section 15 of the parent Act was<\/p>\n
                      never in doubt and there was no omission in its<\/p>\n
                      phraseology which was required to be supplied by the<\/p>\n
                      amending Act. Moreover, the amending Act either<\/p>\n
                      expressly or by implication was not intended to be<\/p>\n
                      retroactive and for that reason we hold that the<\/p>\n
                      amending Act 10 of 1995 is not a declaratory Act and,<\/p>\n
                      therefore, it has no retrospective operation.<\/p>\n<\/blockquote>\n
                      47. For the aforestated reasons, we approve the view of<\/p>\n
                      law taken in Didar Singh etc. v. Ishar Singh (dead) by<\/p>\n
                      Lrs. etc. (supra) and further hold that the decision inthe
\n RSA No.2042 of 1996                                                         12<\/span><\/p>\n
                      case of Ramjilal v. Ghisa Ram<\/a> (supra) does not lay<\/p>\n
                      down the correct view of law.\n<\/p><\/blockquote>\n
                      48. The result of the aforesaid discussion is that the<\/p>\n
                      amending Act being prospective in operation does not<\/p>\n
                      affect the rights of the parties to the litigation on the<\/p>\n
                      date of adjudication of the pre-emption suit and the<\/p>\n
                      appellate Court is not required to take into account or<\/p>\n
                      give effect to the substituted Section 15 introduced by<\/p>\n
                      the amending Act.”\n<\/p><\/blockquote>\n<\/blockquote>\n
Before the Appellate Court, there was nothing to suggest that the plaintiff<\/p>\n
had ceased to be a co-sharer. Since vide the decision of a Bench of five<\/p>\n
Judges in Shyam Sunder’s case (supra) in order to resolve conflict<\/p>\n
between the decisions rendered by two different Benches, it has been held<\/p>\n
that the Amending Act is prospective in operation and will not effect rights<\/p>\n
of the parties in litigation on the date of adjudication of pre-emption suit<\/p>\n
and the appellate Court is not required to take into account or give effect to<\/p>\n
the substituted Section 15 introduced by the Amending Act, the present<\/p>\n
appeal deserves to be allowed.<\/p><\/blockquote>\n
          Accordingly, this appeal is allowed and the judgment and decree<\/p>\n
of the learned Additional District Judge, Panipat whereby the suit of the<\/p>\n
plaintiff was dismissed are set aside and the judgment and decree of the<\/p>\n
Senior Sub Judge Panipat dated 3.2.1994, whereby the suit of the plaintiff<\/p>\n
was decreed, are upheld.\n<\/p>\n<\/p>\n
                                                      ( Sabina )
\n                                                        Judge<\/p>\n
December 04 , 2009
\narya
\n RSA No.2042 of 1996   13<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Kamla vs Pawan Kumar And Others on 4 December, 2009 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-115898","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nKamla vs Pawan Kumar And Others on 4 December, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kamla-vs-pawan-kumar-and-others-on-4-december-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kamla vs Pawan Kumar And Others on 4 December, 2009 - 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