Decided on October 29,1957

KESAR DEVI Appellant
NANAK SINGH Respondents


- (1.) THIS judgment will dispose of Civil Revision No. 518-D of 1956, against the order, dated November 26. 1956, of the Subordinate Judge, 2nd Class, of Delhi, rejecting a plea in defence by the defendant, who is the petitioner, that Section 16 of the punjab Pre-emption Act, 1913, (hereinafter to be referred to as the Act), is ultra vires the provisions of the Articles 14 and 19 (1) (f) of the Constitution of India, and Civil Miscellaneous Application No. 1224-D of 1956 under Article 228 of the constitution of India for withdrawal of the case from the trial Court for determination of the question of law as to the interpretation of the said Articles of the Constitution.
(2.) ON January 31, 1956, the defendant purchased the house in suit and Nanak singh Plaintiff, who is the respondent in this Court in both the cases, has brought a suit to preempt that sale on the grounds: [1] That he is a co-sharer of the vendors in a part of the property sold, that is, in the staircase, the courtyard, deorhi, entrance, chabutra and latrines, [2] that the sale is of a property having a staircase common to the property owned by him, [3] that the sale is of a property having an entrance from a street common with the property owned by him, [4] that the property owned by him and the property purchased by the defendant are contiguous. The defendant has taken a number of defences to the suit and the one defence that is for consideration in these petitions is whether Section 16 of the Act is ultra vires of the provisions of Articles 14 and 19 (1) (f) of the Constitution.
(3.) THE learned trial Judge has relying on Uttam Singh v. Kartar Singh, AIR 1954 punj 55 (FB) (A), and Audh Behari Singh v. Gajadhar Jaipuria, AIR 1954 SC 417 (B), decided this question against the defendant- It is against that interlocutory order that the revision petition is directed and the petition under Article 228 of the constitution is, as pointed out, for withdrawal of the case to this Court and for determination of the said question. The first of the two cases relied upon by the learned trial Judge relates to the right of pre-emption with regard to agricultural land and obviously has no application in the present case. In the second case, though the decision has been given after the Constitution, the suit had actually been decided by the trial Judge long before the constitution came into force. Even that case has no application to the facts of the present case, in which not only the suit has been instituted after the Constitution but even the sale was executed after that.;

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