- (1.) This is an appeal under clause 10 of the Letters Patent and is directed against the decision of a learned Single Judge of this Court reversing the decisions of the two Courts below.
(2.) The plaintiff-appellant Shrimati Har Devi filed a suit for pre-emption to pre-empt the sale of land by Hari Singh alias Jagir Singh to Ram Jas, Savittar and Sultana sons of Chandan. The pre-emption was claimed on the ground that Shrimati Har Devi was a co-sharer with the vendor. Thus, the only question which required determination was whether Hari Singh vendor and Shrimati Har Devi were co-sharers, and that relationship continued right up to the date of the decree of the trial Court in the pre-emption suit. It is common ground that the land in dispute was jointly owned by Hari Singh, Kako and Shrimati Har Devi. Partition proceedings were initiated by Hari Singh on 21st October, 1956 (see Exhibit X. 3). These proceedings did not reach their legitimate conclusion. Hari Singh sold his share to the vendees Ram Jas and others. Later on, Ram Jas and others took proceedings for partition of the land. To these proceedings Shrimati Bar Devi and Kako were parties. Kako is the mother of Ralla Singh. In these proceedings an order was recorded on the 21 st May, 1968 (Exhibit D.11) and its translation is as follows :- "Counsel for the parties present. Demarcation has been effected on the spot. Partition has been effected according to the plan. Now, naqsha jeem be obtained for 4.6.1968." On the 17th June, 1968, order Exhibit D.12 was passed which records that the period of limitation for filing an appeal against the order dated 21st May, 1968, had expired and, therefore, instrument of partition is prepared and will take effect from Rabi 1968. It is thus obvious that by June, 1968, the joint status of the parties had been severed and, therefore, the plaintiff pre-emptor ceased to be a co-sharer before the trial Court's decree which was passed on 31st July, 1968. The trial Court, in view of these facts, could not proceed to decree the pre-emption suit, particularly in view of the decision of the Full Bench of this Court in Ramji Lal and another V. The State of Punjab and others,1966 CurLJ 276, wherein it has been held that a pre-emptor has to maintain his preferential right not only at the date of the suit or during the course of the litigation but also at the date of the trial Court's decree. In the instant case the relationship as co-sharer's had come to an end before the decree was passed and, therefore, the suit for pre-emption could not be decreed. This is the view that the learned Single Judge has taken. The Courts below which dealt with the suit took the view that the relationship as co-sharers had not ceased by the time the trial Court passed the decree.
(3.) Mr. Jain, learned counsel for the appellant, contends that in view of Section 118 of Land Revenue Act no further proceedings could be taken in pursuance of the order of 21st May, 1968, because that order had been appealed against. According to him, the instrument of partition (Exhibit D.12) could not be prepared. It is not necessary for us to go into this matter because we are of the opinion that the order dated 21st May, 1968, put an end to the joint relationship. That order was appealed against and that appeal failed; or, to put it more accurately, was not pressed. Therefore, the order dated 21st May, 1968, remained alive and whatever has happened in pursuance of it cannot be just wiped out. Faced with this situation, Mr. Jain took recourse to the doctrine of merger and according to him the order of 21st May, 1968, would merge with the order of the appellate Court dismissing the appeal. It is in this situation, that the learned counsel contends that the date when the appellate order was passed being beyond the date of the trial Court's decree, there was no severance of status and the trial Court was justified in decreeing the suit for pre-emption. We are unable to agree with this contention. The doctrine of merger is of a very limited application and does not apply to all proceedings. Reference in this connection may be made to the observations of the Supreme Court in State of Madras V. Madurai Mills Co., Ltd., 1967 AIR(SC) 681wherein their Lordships observed as follows :- "The doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that whatever there are two orders, one by the inferior authority and the other by a superior authority, passed in an appeal or revision, there is a fusion or merger of two orders irrespective of the subject-matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. The application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction." Reliance was placed by the Supreme Court on two earlier decisions in State of Uttar Pradesh V. Mohammad Nooh, 1958 AIR(SC) 86, and Commissioner of Income-tax, Bombay V. Amritlal Bhogilal and Company, 1958 AIR(SC) 868. Mr. Jain has, however, brought to our notice the decision of the Supreme Court in Collector of Customs, Calcutta V. East India Commercial Company Limited, 1963 AIR(SC) 1124, which if not carefully read does appear to support his contention. But that decision was on its own peculiar facts and does not in any way apply to the facts of the present case.;