- (1.) BY this judgment, we shall dispose of the following two Regular Second Appeals, which are directed against the judgment dated 1-4-1961 of the Additional District Judge, Kamal:- (1) R. S. A. No. 560/1961--Karnail Singh and others v. Jabbar Singh. (2) R. S. A. No. 1221/1961 -- Jabbar Singh v. Karnail Singh and others. Both these appeals came up for hearing before Hon'ble Mahajan, J. , and by order dated 27-8-1971, he directed that both the appeals may be laid before the Hon'ble Chief Justice for constituting a Full Bench to decide the law point involved in these appeals. The following observations were made in the order dated 27-6-1971 of Mahajan, J. : - "the principal contention that has been advanced by the learned counsel for the vendees is that in view of Section 31, the applicability of Section 5 has to be seen at the date of the ultimate decision and not at the date of the suit. A contrary view to the contention urged has been taken in three decisions of this Court, Balwant Singh v. Kehar Singh, 1963-65 Pun LR 972; Madan Lal v. Dhan Raj, 1964 Cur LJ (Punj.) 343, and Tek Chand v. Sain Dass, 1867 Cur Lj (Punj and Har) 824. It appears to me that these decisions run contrary to the decision of the Supreme Court in Ram Sarup v. Munshi, AIR 1963 SC 553, wherein their Lordships approved the decision of this Court in Ram Lal v. Raja Ram, 1960-62 Pun LR 291. Apart from this, there is no time-limit fixed in Section 5 upto which the waste land can be reclaimed by the vendees. In my opinion, no artificial time-limit can be fixed and the proper approach would be that the applicability of Section 5 should be judged at the time when the decree is to be passed. As I hold a contrary view to the Division Bench decisions already referred to, it will be proper that these cases are settled by a Full Bench. The other points are not very complicated and it would be proper that the whale case is settled by the Full Bench. " That is, how, these two appeals are before the Full Bench.
(2.) THE facts of this case are that Ruhla Singh, defendant No. 1, owned land measuring 705 Kanals and 7 Marias fully described in para No. 1 of the plaint and situated in the area of village Chanal Heri, Tahsil Thanesar, District Kamal (now District Kurukshetra) and he sold the same to Karnail Singh and others, defendants 2 to 10 for Rs. 211,160 on the basis of a registered sale deed dated 27-2-1958, Jabbar Singh plaintiff, who is the minor son of the vendor Ruhla Singh filed suit for possession by pre-emption of this land on payment of the sale price through his next friend on the allegations that his right of pre-emption is superior to that of the vendees, who are strangers. The defendants-vendees contested this suit. They did not admit that the plaintiff was the son of the vendor and had a superior right of pre-emption. In the alternative it was pleaded that the plaintiff and the vendor Ruhla Singh were members of the joint Hindu family and the land in suit belonged to the joint Hindu family and, therefore, the plaintiff had no right to sue for pre-emption. It was also alleged that the plaintiff is a member of the joint Hindu family and is owner of more than 30 standard acres of land, and therefore this suit is not competent. They averred that the plaintiff is estopped from filing this suit. They claimed Rs, 10,000 on account of the improvements made by them on this land after the sale in case decree was passed against them. They pleaded that after the sale, the Punjab Pre-emption Act was amended and this sale is not pre-emptible under the provisions of Section 5 as amended. In his replication, the plaintiff denied the allegations made by the vendees. It was pleaded that he and his father were governed by custom in matters of succession and alienation of property. On these pleadings of the parties, the following issues were framed by the trial Court:- " (1) Whether the plaintiff has a preferential right to pre-empt? (2) Whether the suit property belonged to the joint Hindu family of the plaintiff and his father and as such the plaintiff is in the position of the vendor? (3) Whether the plaintiff is estopped from filing the suit? (4) Whether the plaintiff is a big landlord and its effect? (5) Whether any improvements have been made and of what value? (6) Relief. (6-A) Whether the plaintiff and defendant No. 1 are governed by custom in matters of succession and alienation. Its effect? (7) Whether the sale is not pre-emptible on the ground mentioned in the new anending Act in Section 5 and about what area?" The trial Court decided issue No. 1 in favour of the plaintiff and decided issues No: 1, 2, 3, 4, 5 and 6-A against the defendants. It was held that the land in suit was not agricultural land and as such the provisions of Section 5, as amended, of the Punjab Pre-emption Act were not applicable to the present case and issue No. 7 was also decided against the defendants. As a result, decree for possession by pre-emption of the land in suit on payment of Rs. 21. 685 was passed in favor of the plaintiff against the vendees after adjusting l/5th of the amount already deposited by them. Feeling dissatisfied Karnal Singh and others defendants-vendees filed an appeal against this decree in the Court of the District Judge, which was decided by the Additional District Judge, Karnal, on 1-4-1961. The Additional District Judge affirmed the decision of the trial Court on issues Nos. 1, 2, 3, 4, 5 and 6-A. However, on issue No 7. he held that the vendees had reclaimed 5 Khasra Nos. 1071 to 1075 mea-suring 40 Kanals before the institution of the suit, and therefore, the suit for preemption regarding these five khasra numbers was not maintainable in view of the provisions of Section 5 as amended, of the Puniab Pre-emption Act and the decree of the trial Court regarding these five khasra numbers was set aside and the suit of the plaintiff was dismissed. Regarding the remaining land in suit, the decree of the trial Court was maintained and a decree for possession of the land in suit excepting Khasra Nos. 1071 to 1075 on payment of Rs. 19,960 was passed in favour of the plaintiff. To the above extent, the decree of the trial Court was modified and the parties were left to bear their costs. Feeling dissatisfied, Karnail Singh and others, vendees, filed Regular Second Appeal No. 560 of 1s61 alleging that the decision of the lower appellate Court was wrong and incorrect and it may be set aside and the suit of the plaintiff may be dismissed in toto. Jabbar Singh plaintiff filed Regular Second Appeal No. 1221 of 1961 alleging that the decision of the lower appellate Court on issue No. 7 that the suit regarding five khasra numbers 1071 to 1075 was not maintainable is wrong and incorrect and it may be set aside and the decree passed by the trial Court in his favour may be restored.
(3.) MR. Jagan Nath Kausal, learned counsel for Karnail Singh and others, defendants-appellants of R. S. A. No. 560 of 1961, contested the decision of the lower appellate Court on issue No. 7 only. He contended that in view of the provisions of Section 3d of the Punjab Preemption Act No. 1 of 1943, (hereinafter called the Act), as added by Punjab Preemption Amendment Act No. 10 of 1960, the applicability of Section 5 of that Act has to be seen at the date of the ultimate decision in the case and not at the date of the institution of the suit and, therefore, the decision of the lower appellate Court passing decree regarding the entire land in suit excepting five khasra (numbers measuring 40 Kanals cannot be sustained. He maintained that in Section 5 (b) of the Act, no time-limit is fixed upto which the waste land can be reclaimed by the vendee and, therefore, no artificial time-limit can be fixed that the vendees can only reclaim the land upto the date of the institution of the pre-emption suit. He further argued that the law laid down in 1963-65 Pun LR 972 and 1967 Cur LJ (Punj. and Har.) 824 to the effect that the land, which is saved from the pre-emption suit is only the land, which has been reclaimed upto the date of the suit and not beyond that is not correct and is contrary to the law laid down by the Supreme Court in (1963) 3 SCR 858 = (AIR 1963 SC 553) and an earlier Division Bench ruling of this Court reported as 191)0-62 Pun LR 291.;