JINDA RAM (DEAD) BY LRS.versusRAM PRAKASH AND ANR.

                     JINDA RAM (DEAD) BY LRS.                                 A
                                     v
                       RAM PRAKASH AND ANR.

                           NOVEMBER 10, 1995

              [J.S. VERMA AND K. VENKATASWAMI, JJ.]                           B

        Punjab Pre-Emption Act, 1913: Section IS(l)(b).

      Pre-emption suit-Plaintiff co-sharer and tenanf-Claim for pre-emp-
tion held not lost merely because partition had taken place during pendency   C
of appeal.

      In a suit filed by the appellant-plaintiff, who was a co-sharer and
tenant, pre-emption right in respect of agricultural suit lands under
Section lS(l)(b) fourthly and fifthly to the Punjab Pre-Emption Act, 1913
was claimed. The Trial Court granted partial relief but the First Appellate   D
Court dismissed the plaintiffs suit. The High Court held that not-
withstanding the admitted position that plaintiff was a co-sharer at the
time of sale, at the time of filing of suit for pre-emption and also at the
time of passing of the decree by the Trial Court, he lost his right of
pre-emption as there was a partition during the pendency of the appeal.       E
Against the decision of the High Court an appeal was preferred before this
Court.

      Allowing the appeal and setting aside the order of the High Court,
this Court
                                                                              F
      HELD : The High Court was not right in holding that the plaintiff
would lose his right of pre-emption on account of a partition that had
taken place pending appeal even though his right as a co-sharer to pre-
empt was established in the Trial Court and not challenged by the ven-
dees-defendants. The relevant period to exercise the right of pre-emption G
is the period when the sale was effected and when the suit was filed
claiming that right. Therefore, the appellants are entitled to a decree as
prayed for regarding their right of pre-emption. [62-B-C]
                                                                                   I
        C..VIL APPELLATE JURISDICTION : Civil Appeal No. 9992 of                   •
1995.                                                                         II
                                     59
    60                     SUPREME COURT REPORTS (1995) SUPP..5S.C.R.

A        From the Judgment and Order dated 18.3.92 of the Punjab &
    Haryana High Court in R.S.A. No. 2342 of 1991.

           AK. Goel and Ms. Sheela Goel for the Appellants.

           C.L. Sahu for the Respondents.
B
           The Judgment of the Court was delivered by

           VENKATASWAMI, J. Leave granted.

           Heard counsel on both sides.
c
          This appeal by special leave is direct~d against the judgment and
    order dated 18.3.1992 of the High Court of Punjab & Haryana in RSA No.
    2342 of 1981. The question that arises for consideration in this appeal is
    whether a partition effected during the pendency of the appeal affects the
    right of a person who was admittedly a co-sharer at the time of sale of
D   pre-emption.

           Brief facts are the following :

           The appellants are the legal representatives of one Jinda Ram who
E was the plaintiff and filed a suit for pre-emption for agricultural land
     measuring 20 kanals 4 marlas as described in the Plaint Schedule. This
     right of pre-emption was claimed under Section 15(b) fourthly and fifthly
     of the Punjab Pre-emption Act, 1913 as a co-sharer and also as a tenant.
     The suit was contested and the trial court framed as many as 10 issues and
     found that the plaintiff was a co-sharer in the joint khewat of the suit land
F    and has a preferential right of pre-emption. The claim of the plaintiff that
     he was a tenant was also found in favour of the plaintiff. Though the
     plaintiff claimed that the value of the property was only Rs. 6,000 as against
     the sale price shown in the document as Rs. 10,500, the trial court did not
     agree with this contention of the plaintiff. Notwithstanding the finding in
G    favour of the plaintiff with regard to his right of pre-emption, the trial court
     granted a partial relief only on the gro.und that out of 8 vendors, six were
     females and the right of pre-emption was available to the plaintiff only to
    _the extent of 2 male vendors shares and on that finding granted a decree
     in favour of the plaintiff.

H          Aggrieved by the decree of the trial court in not granting full relief,
        JINDARAM v. RAMPRAKASH[VENKATASWAMY,J.]                             61

the plaintiff preferred an appeal. The learned Additional District Judge, A
Karna! reversed the conclusion of the trial court that the plaintiff was not
entitled to the right of pre-emption so far as the shares of female vendors
were concerned. However, the lower appellate court dismissed the suit
taking away even the partial relief granted by the trial court by holding that
vendees- defendants after the purchase of the suit land became co-sharers B
and as such there could be no right of pre-emption against them. Conse-
quently the first appellate court while dismissing the appeal dismissed the
suit as well.

      Still aggrieved, the plaintiff preferred a second appeal to the High
Court. The learned Single Judge while setting aside the reasoning of the          C
lower appellate Court as mentioned.above observed as follows:

        "That findings of the lower. appellate court that vendees have
        become co-sharers by the impugned sale and so the plaintiff has
        no statutory right of pre-emption is palpably wrong and legally
        unsustainable".                                                 D

Having held so, the learned Judge gave another reasoning for dismissing
the second appeal. It was contended before the learned Single Judge that
the pre-emptor has to maintain his qualification at all the three stages,
namely, (a) at the time of sale, (b) at the time of institution of suit and (c)   E
at the time of decree. It was further pointed out before the learned Single
Judge that during the pendency of the appeal, the suit lands were parti-
tioned and in view of the changed position, the claim of the plaintiff that
he continues to be a co-sharer in the joint holding was without any merit.
This contention was accepted by the High Court and consequently, the
appeal was dismissed. Hence, the present appeal by special leave.                 F
      The learned counsel appearing for the appellants (legal repre-
sentatives of plaintiff) submitted that the view taken by the learned Single
Judge that notwithstanding the admitted position that plaintiff was a co-
sharer at the time of sale, at the time of filing of the suit for pre-emption
and also at the time of passing of the decree by the trial court, the plaintiff G
would lose his right of pre-emption if there is a partition during the
pendency of the appeal cannot at all be sustained. He submitted that if
such a contention is accepted, no decree for pre-emption can successfully
b~ obtained. He also invited our attention to Section 21(A) of the Punjab
Pre-Emption Act, 1913. His further contention was that in any event that H
    62                    SUPREME COURT REPORTS [1995] SUPP. 5 S.C.R.

A   the plaintiff's claim for the right of pre-emption in his status as a tenant
    could not be defeated.

          We find substance in the argument of the learned counsel for the
    appellant and we are of the view that the learned Judge was not right in
    holding that the plaintiff would lose his right of pre-emption on account of
B   a partition that had taken place pending appeal even though the right of
    the plaintiff as a co-sharer to pre-empt was established in the trial court
    and not challenged by the vendees-defendants. The relevant period .to
    exercise the right of pre-emption is the period when the sale was effected
    and when the suit was filed claiming that right. In this view of the matter,
C   the judgment and order of the learned Single Judge cannot be sustained
    and accordingly, it is set aside. The appellants are entitled to a decree as
    prayed for regarding their right of pre-emption.

          So far as the valuation of the land is concerned, though the trial court
    fixed it as Rs. 11,667.50, the lower appellate court at the instance of the
D   plaintiff on appeal has fixed the sale consideration at Rs. 7,200 plus stamp,
    registration and execution charges as fixed in the decree of the trial court.
    The appellants will deposit the amount as determined by the first appellate
    court in the trial court within two months from this date.

          The appeal is allowed accordingly. No costs.
E
    T.N.A.                                                       Appeal allowed.