REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6391  OF 2003

Pirthi              .... Appellant (s)

Versus

Mohan Singh & Ors.     .... Respondent(s)

J U D G M E N T  

P. Sathasivam, J.

1) This  appeal  is  directed against  the final  judgment  and  

order dated 07.03.2002 passed by the High Court of Punjab  

and Haryana at Chandigarh in RSA No. 136 of 2001 whereby  

the  High Court  dismissed  the  appeal  filed  by  the  appellant  

herein.

2) Brief facts:

(a) The  appellant-plaintiff  and  respondent  No.5  –  whose  

name  has  been  deleted  from  the  array  of  parties  by  this  

Court’s order dated 08.08.2003,  filed  a suit for possession by  

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way of  pre-emption being Civil  Suit  No.  107/92/93 against  

respondent Nos. 1-4 herein (Defendants) before the Civil Judge  

(Jr.  Division),  Bahadurgarh, Haryana claiming themselves to  

be  co-sharers  with  the  vendor  -  Shiv  Lal-defendant  No.3  

(respondent  No.3  herein-since  deceased,  his  legal  

representatives are on record), who sold away his half share of  

the suit land comprised in Khewat No. 22 (min.), Khasra Nos.  

47 and 48, Khasra No. 1043 measuring 3 bighas, 3 biswas  

pukhta 1058 (2-11) and Khewat No. 28 (min.),  Khasra Nos.  

54-55.  Khasra  No.  5496/1693  (2-16)  5497/1693(1-5)  total  

measuring  10  Bighas  8  Biswas  to  defendant  Nos.  1  &  2  

(respondent Nos. 1 & 2 herein) by sale deed dated 08.06.1992  

for  a  consideration  of  Rs.1,40,000/-  and  for  declaring  the  

lease deed No. 326 dated 07.05.1992 illegal, null and void and  

unwarranted by law.  Defandant Nos. 1 & 2 are brothers and  

defendant No. 4 (respondent No.4 herein) is their mother.   

(b) When  the  case  was  fixed  for  service  of  the  remaining  

defendants,  defendant  Nos.  1  &  4  filed  an  application  for  

dismissing the suit of the plaintiffs being not maintainable on  

the  ground  that  after  passing  of  the  Punjab  Pre-emption  

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(Haryana Amendment) Act, 10 of 1995, (hereinafter referered  

to as “the Act”) the right of pre-emption on the basis of co-

sharership  is  not  available  to  them.   The  Civil  Judge  (Jr.  

Division),  by  judgment  dated  09.02.1996,  accepting  the  

application filed by the defendants dismissed the suit filed by  

the plaintiffs.    

(c) Aggrieved  by  the  said  judgment,  the  plaintiffs  filed  an  

appeal being Civil Appeal No. 23 of 1996 before the Additional  

District  Judge,  Jhajjar.   By  order  dated  18.07.2000,  the  

Additional  District  Judge  dismissed  the  appeal  filed  by  the  

plaintiffs.   

(d) Challenging the order passed by the Additional District  

Judge,  Pirthi-plaintiff  No.1  (appellant  herein)  filed  regular  

second appeal  being  RSA No.  136 of  2001 before  the  High  

Court of Punjab & Haryana at Chandigarh.  The High Court,  

by  impugned  judgment  dated  07.03.2002,  holding  that  the  

plaintiff/appellant had lost the character of a co-owner during  

the pendency of the suit, dismissed the appeal.   Against the  

said judgment, the appellant-plaintiff has filed this appeal by  

way of special leave petition before this Court.

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3) Heard Mr. Mahabir Singh, learned senior counsel for the  

appellant  and  Mr.  Pramod  Dayal,  learned  counsel  for  

respondent Nos. 2 & 4.  Despite service of notice, respondent  

Nos.1 and 3 have not chosen to appear in-person or through  

counsel.   

Discussion:

4) It  is  the  case  of  the  respondents/defendants  that  

superior right of pre-emption on the basis of co-sharership is  

not available to plaintiffs now.  After passing of the Act, this  

right has been restricted only to the tenants and the plaintiffs  

have no locus-standi to file and pursue their suit as they are  

not  claiming  the  right  as  tenants.   It  is  the  claim  of  the  

appellant/plaintiff  that  the  suit  in  question  was  instituted  

prior to the amendment in the Punjab Pre-emption Act, 1913  

hence  the  amendment  in  the  Act  is  not  applicable  to  the  

present case.   The trial  Court  accepted the objection of  the  

defendants as to the maintainability of the suit and dismissed  

the same as not maintainable which was affirmed by the lower  

appellate Court.   The same view has been reiterated by the  

High Court by dismissing the second appeal.   

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5) It is true that the suit, in the present case, was filed prior  

to  the  amendment  in  the  Punjab  Pre-emption  Act,  1913.  

Section  15  of  the  Pre-emption  law  has  been  amended  and  

notified  vide  Gazette  Notification  dated  17.05.1995  which  

reads as under:

“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 vendor/vendors the land or property sold or a  part thereof.”

This  change  in  the  law affects  all  pre-emption cases  based  

upon the co-sharership.  In view of this change in the law, a  

co-sharer has no right to bring a suit for possession by way of  

pre-emption, hence the application filed by the defendants for  

dismissing the suit of the plaintiffs being not maintainable had  

been accepted by the trial Court and suit of the plaintiff came  

to  be  dismissed.  This  was  affirmed  by  the  lower  appellate  

Court  and  finally  by  the  High  Court  which  order  is  under  

challenge in this appeal.  

6) While ordering notice on the special leave petition, even  

as early as on 02.09.2002, it was specifically mentioned that  

as to why the case be not decided in the light of a Constitution  

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Bench  judgment  in  Shyam Sunder  and  Others vs.  Ram  

Kumar and Another, (2001) 8 SCC 24.   

7) In  Bhagwan Das (dead) by LRS. and Others vs.  Chet  

Ram,  1971 (1)  SCC 12, a three-Judge Bench of this Court,  

while  considering  right  of  pre-emption  has  held  that  pre-

emptor’s  right  should subsist  till  institution of  suit  for  pre-

emption and passing of decree.  It was further held that the  

rule that a pre-emptor must maintain his qualification to pre-

empt up to the date of decree was recognized as well settled.  

8) In  Rikhi  Ram  and  Another vs.  Ram  Kumar  and  

Others, (1975) 2 SCC 318, again, a three-Judge Bench of this  

Court,  while  considering  right  of  pre-emption  under  the  

Punjab Pre-emption Act, 1913, after adverting to the principles  

laid down in  Bhagwan Das (supra) and considering Section  

15(1)  of  the  Punjab  Pre-emption  Act  held  that  under  the  

general  law of  pre-emption,  it  is  firmly  established that the  

decisive date as regards the right of pre-emptor to pre-empt  

the sale was the date of the decree.  In other words, the pre-

emptor who claims the right to pre-empt the sale on the date  

of the sale must continue to possess that right till the date of  

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the decree.   If  he loses that right  before the passing of the  

decree, decree for pre-emption cannot be granted even though  

he may have had such right on the date of the suit.    

9) Now,  let  us  consider  the  decision  of  the  Constitution  

Bench i.e.  Shyam Sunder (supra) and its applicability to the  

case on hand.  Both the above decisions being Bhagwan Das  

(supra) and  Rikhi  Ram  (supra) were  relied  on  by  the  

Constitution Bench.     

10) The  very  same  Haryana  Amendment  Act,  10  of  1995,  

which  introduced  Section  15,  was  considered  by  a  

Constitution Bench in Shyam Sunder (supra).  The question  

posed before the Constitution Bench was:  

“What  is  the  effect  of  substituted  Section  15  introduced by the Haryana Amendment Act,  1995  (hereinafter referred to as ‘the amending Act, 1995’)  in the parent  Act  i.e.  the Punjab Pre-emption Act  (hereinafter  referred  to  as  ‘the  parent  Act’)  as  applicable to the State of Haryana whereby the right  of  a co-sharer to pre-empt a sale has been taken  away during the pendency of an appeal filed against  a judgment of the High Court affirming the decree  passed by the trial Court in a pre-emption suit?”

11) When in the case of  Shyam Sunder (supra),  the main  

appeal, i.e., Civil Appeal No. 4680 of 1993 came up for hearing  

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before a Bench of this Court, the Bench, on the question of the  

effect  of  the  amendment  made  in  1995  in  the  parent  Act,  

found that there is conflict in the view taken in the decisions  

of two three-Judge Benches of this Court,  which are  Didar  

Singh vs. Ishar Singh (2001) 8 SCC 52 wherein it was held  

that in a suit for pre-emption, the pre-emptor must prove his  

right to pre-empt up to the date of decree of the first court and  

any loss of right or subsequent change in law after the date of  

adjudication of the suit and during pendency of appeal would  

not affect the decree of the first court and Ramjilal vs. Ghisa  

Ram (1996) 7 SCC 507 wherein it was laid down that appeal  

being continuation of the suit, the right to claim pre-emption  

must be available on the date when the decree is made and is  

finally to be affirmed or needs to be modified at the time of  

disposal of the appeal therefrom, and since the amending Act  

came  into  force  during  pendency  of  appeal,  the  right  and  

remedy of the plaintiff stood extinguished and as a result the  

suit  must fail.   In order to resolve  the conflict  between the  

aforesaid two decisions rendered by two different Benches, the  

Bench  referred  the  appeal  for  decision  by  a  Bench  of  five  

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Judges.  It  is  in  this  way,  the  matter  was  heard  by  the  

Constitution Bench.   

12) The Constitution Bench noted the facts which have given  

rise  to  Civil  Appeal  No.  4680  of  1993.   The  defendant-

appellants  herein  purchased  land  measuring  54  kanals,  

situated in Village Rithal Phogat, being 1/2 share of the land  

of Khewat Nos. 204, 205 and 206, measuring 108 kanals for a  

sum of Rs 84,000/- from vendors viz.  Bharpai,  Chhoto and  

Pyari  —  daughters  of  Bhagwana  vide  sale  deed  dated  

17-07-1985.  The  plaintiff-respondents  herein  claimed  

preferential  right  to  pre-empt  the  sale  in  favour  of  the  

defendant-appellants on the ground that they are co-sharers  

by means of a civil suit laid before the Sub-Judge, Ist Class,  

Gohana.  In  the  said suit,  issues were  framed and the  trial  

court  decided  all  the  issues  in  favour  of  the  plaintiff-

respondents  and  consequently  on  30-5-1990  the  suit  was  

decreed. The respondents after passing of the decree by the  

court  of  first  instance  deposited  the  purchase  money  as  

required under Order 20 Rule 14 CPC. The appeal preferred by  

the appellants before the first appellate court and the second  

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appeal before the High Court were dismissed and the decree of  

the  trial  court  was  affirmed.  The  appellants  thereafter  

preferred this appeal by way of special leave petition. During  

pendency of the appeal, Section 15(1)(b) of the parent Act, on  

the  basis  of  which  the  suit  was  filed  by  the  plaintiff-

respondents,  was  amended  and  was  substituted  by  new  

Section 15 whereby the right of a co-sharer to pre-empt a sale  

was taken away. The substituted Section 15 of the Act has  

been quoted earlier.

13) Since several decisions have been cited, the Constitution  

Bench categorized those decisions and referred them as first,  

second and third categories of decisions.  The first category of  

decisions are those wherein the view of law expressed is that  

in a suit  for  pre-emption,  the pre-emptor must possess his  

right to pre-empt right from the date of sale till  the date of  

decree of the first court, and loss of that right after the date of  

decree either by own act, or an act beyond his control or by  

any subsequent change in legislation which is prospective in  

operation  during  pendency  of  the  appeal  filed  against  the  

decree of the court of first instance would not affect the right  

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of the pre-emptor. The second category of decisions deals with  

the cases where right of a pre-emptor was taken away after the  

date of decree of the first court and during pendency of the  

appeal  by  statutory  enactment  which  had  retroactive  

operation. In such cases, it was held that the appellate court  

is  competent to take into account legislative  changes which  

are  retrospective  and  accordingly  affect  the  rights  of  the  

parties to the litigation. The decisions in the third category of  

cases are those where it  has been held that appeal being a  

continuation of the suit, the right to pre-empt a sale must be  

available on the date when the decree is made and is finally to  

be affirmed or needs to be modified at the time of disposal of  

appeal  and  in  case  of  loss  of  right  by  legislative  changes  

during pendency of appeal, the suit for pre-emption must fail.  

After  analyzing  various  decisions  referred  to  in  the  first  

category,  the  Constitution  Bench  formulated  the  following  

legal principles:

“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.

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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 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.”

14) The legal position that emerges on review of the second  

category of decisions is that the appeal being a continuation of  

the suit, the appellate court is required to give effect to any  

change in law which has retrospective effect.  In para 15, the  

Constitution  Bench  has  held  that  the  legal  principle  that  

emerges out of the aforesaid decisions is that an appeal being  

a  continuation  of  the  suit,  the  right  to  pre-empt  must  be  

available on the date when the decree is made and is finally to  

be affirmed or needs to be modified at the time of disposal of  

the appeal  and where  right  and remedy of  the  plaintiff  has  

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been taken away statutorily  during pendency of  appeal,  the  

suit must fail.

15) The following discussion and conclusion in para 28 are  

relevant:

“… ….. In  Shanti Devi v.  Hukum Chand, (1996) 5 SCC 768,  this Court had occasion to interpret the substituted Section  15 with which we are concerned and held that on a plain  reading of Section 15, it is clear that it has been introduced  prospectively  and  there  is  no  question  of  such  section  affecting in any manner the judgment and decree passed in  the suit for pre-emption affirmed by the High Court in the  second appeal.  We are  respectfully  in  agreement  with  the  view  expressed  in  the  said  decision  and  hold  that  the  substituted Section 15 in the absence of anything in it  to  show that it is retrospective, does not affect the right of the  parties which accrued to them on the date of the suit or on  the  date  of  passing  of  the  decree  by  the  court  of  first  instance. We are also of the view that the present appeals  are  unaffected  by  change  in  law  insofar  it  related  to  determination of the substantive rights of the parties and the  same are required to be decided in the light of the law of pre- emption as it existed on the date of passing of the decree.”

16) After  analyzing  all  the  decisions  cited  therein,  the  

Constitution Bench has concluded thus:

“44. 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  a two-Judge Bench of this Court in Mithilesh Kumari v. Prem  Behari  Khare 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  provisions  of  Section  4  of  the  Act  have  retroactive  operation.  The reliance on this decision by the appellants'  

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counsel is totally misplaced as this decision was overruled in  R. Rajagopal Reddy v.  Padmini Chandrasekharan wherein it  was held that the Act was not passed to clear any doubt that  existed as to the common law or the meaning of effect of any  statute and it was, therefore, not a declaratory Act.

45. 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 the  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 amending Act 10  of  1995 is not a declaratory Act  and, therefore,  it  has no  retrospective operation.

46. For the aforestated reasons, we approve the view of law  taken in Didar Singh v. Ishar Singh and further hold that the  decision in the case of  Ramjilal v.  Ghisa Ram does not lay  down the correct view of law.

47. 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.

48. In view of what has been stated above, these appeals fail  and accordingly are dismissed, but there shall be no order as  to costs.”

17) From the above discussion, particularly, in para 45, the  

Constitution Bench observed that the Amending Act 10/1995  

is not a declaratory Act and, therefore, it has no retrospective  

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operation.  In para 46, the Constitution Bench has approved  

the view of law taken in Didar Singh (supra) and further held  

that the decision in the case of Ramjilal (supra) does not lay  

down the correct view of law.  No doubt, in the penultimate  

para  47,  the  Constitution  Bench  has  concluded  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.  It is  

clear  that  the  appellate  court  is  not  required  to  take  into  

account or give effect to the substituted Section 15 introduced  

by the amending Act.  On the other hand, as discussed and  

concluded in para 46, the dictum laid down in  Didar Singh  

(supra) has been approved.  In  Didar Singh (supra), it was  

held that in a suit for pre-emption, pre-emptor must prove his  

right to pre-empt up to the date of the decree of the first court  

and any loss of right or subsequent change in law after the  

date  of  adjudication of  the  suit  and pre-tendency of  appeal  

would not affect the decree of the first court.  The said view  

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has been approved by the Constitution Bench.  In other words,  

in a suit for pre-emption, the pre-emptor must prove his right  

to pre-empt up to the date of decree of the first court.  To put  

it clear, 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  

[Emphasis supplied].   In the case on hand, the amendment  

Act came into force with effect from 17.05.1995 and suit had  

been  laid  on  31.10.1992.   In  other  words,  on  the  date  of  

institution of the suit, the plaintiff/pre-emptor had a right to  

claim “right of pre-emption”.  However, during the pendency of  

the suit,  since the amendment Act came into force, deleting  

the right of pre-emption and in the absence of such right on  

the date of passing of the decree by the court of first instance,  

we are of the view that both the courts below have correctly  

appreciated the effect of the amendment and the High Court  

also  rightly  dismissed  the  second  appeal  holding  that  the  

plaintiff  had  lost  the  character  of  a  co-owner  during  the  

pendency of the suit by virtue of the amendment Act.  

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18) In view of the above discussion and the interpretation of  

the Constitution Bench in respect of substituted Section 15  

introduced  by  the  Haryana  Amendment  Act,  1995  in  the  

Parent Act i.e. the Punjab Pre-emption Act, we concur with the  

view  expressed  by  all  the  three  courts  including  the  High  

Court.   Consequently,  the  appeal  fails  and  the  same  is  

dismissed.  No order as to costs.         

      ...…………………………………J.                   (P. SATHASIVAM)  

...…………………………………J.           (H.L. GOKHALE)  

NEW DELHI; September 2, 2011.     

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