SATISH KUMAR MITTAL, J. - (1.) THE defendants have filed this Regular Second Appeal for setting aside the judgments and decrees passed by both the courts below whereby the suit of the plaintiffs for possession by way of pre-emption, has been decreed.
(2.) THE brief facts of the case are that defendants No. 7 to 13 were owners of the agricultural land measuring 18 bighas 5 biswas, i.e., 1/3rd share of the land measuring 54 bighas 15 biswas situated in village Bhoosli Tehsil and District Karnal. Defendant Nos. 7 to 13 sold their above said share in the joint land to defendant Nos. 1 to 6 (appellants herein) vide registered sale deed dated 30.11.1988 for consideration and delivered possession of the land to them. The plaintiffs being co-sharers in the joint khewat filed a suit on 29.1.1989 for pre-emption for pre-empting the aforesaid sale made by their co-sharers in favour of the appellants. The trial Court decreed the said suit on 31.7.1993. Aggrieved against the said judgment and decree, the vendees (appellants) filed First Appeal before the Additional District Judge, Karnal. Meanwhile, Punjab Pre-emption (Haryana Amendment) Act, 1995 came into force, whereby the right of pre-emption on the ground of co-sharership was extinguished. Keeping in view the said amendment in the Punjab Pre-emption Act, the appeal of the vendees-appellants was accepted and the suit of the plaintiffs for pre-emption on the ground of co-sharership was dismissed on 13.9.1995. The plaintiff-respondents preferred R.S.A. No. 2835 of 1995 before this Court. This Court vide judgment dated October 7, 2007 held that the amendment made vide notification dated 7.5.1995 taking away the right of pre-emption on the basis of co-sharership was prospective in nature and not retrospective, therefore, the notification shall not be applicable in those cases where the suit was already decreed. Same view was affirmed by the Supreme Court in Shyam Sunder and another v. Ram Kumar and another, 2001(3) RCR(Civil) 754. Consequently, the judgment and decree passed by the Additional District Judge was set aside and the matter was remanded with direction to the First Appellate Court to decide the same on merits after hearing the counsel for both the parties. It is pertinent to mention here that during the pendency of the Regular Second Appeal in this court, the vendees-appellants purchased some share from other co-sharers from the joint khewat vide registered sale deed dated 29.5.2000 (Ex. D5) and, thus, become co-sharers in the joint khewat. A copy of the sale deed as well as the copy of the mutation sanctioned on the basis of the sale deed were also placed on the record.
(3.) BEFORE the first Appellate Court, a contention was raised by the counsel for the vendees-appellants that by purchasing the land out of the joint khewat vide registered sale deed dated 29.5.2000, they have improved their status as they have become co-sharers in the khewat, therefore, they have defeated the rights of the plaintiffs for pre-empting the suit land on the ground of co- sharership. The first Appellate Court rejected the contention raised by the appellants and dismissed the appeal while observing as under :- "The sale deed dated 29.5.2000 Ex. D5 depicts that appellants Randhir Singh, Sukhbir Singh, Joginder Singh, Hukam Singh and Baldhir Singh have purchased 10 bighas 16 biswas land out of this khewat on 29.5.2000. The learned counsel for the appellants have contended that the status of the appellants stands improved with the aforesaid sale deed and they have come at par with the plaintiff respondents, so the plaintiff respondents cannot pre-empt the sale dated 30.11.1988 but these contentions of the learned counsel for the appellants also carry no substance. It is not disputed at all that the sale deed in question has come into existence after the passing of the decree by the learned trial Court in favour of the plaintiff respondents 1 and 2. Section 21-A of the Act reads as under :- Any improvement, otherwise than through inheritance or succession, made in the status of a vendee defendants after the institution of a suit for pre-emption shall not affect the right of the pre-emptor-plaintiff in such suit. As per the above provision of law, any improvement made in the status of a vendee defendants after the institution of the suit for pre-emption otherwise than through inheritance or succession shall not affect the right of the pre- emptors plaintiffs in such suit. In the instant case, what to talk of improvement, after the institution of the suit rather the improvement has been made by the appellant defendants even after passing of the decree by the learned trial Court. The Hon'ble High Court way back in the year 1953 in case in Tehoo Ram and others v. Dalip Singh and another, AIR 1953 Punjab 128 has laid down that the improvement in the status of the defendants after the institution of the suit by the purchase of the share of the other defendants cannot affect the right of pre-emptor plaintiff. Similarly in case Mathu and others v. Sham Lal and others (supra) our Hon'ble High Court laid down as under :- Section 21-A of the Punjab Pre-emption Act provides that any improvement, otherwise than through inheritance, or succession, made in the status of a vendee defendant after the institution of a suit for pre-emption shall not affect the right of the pre-emptor plaintiff in such suit. Thus, even if the vendee, that is defendants No. 1 to 6 had subsequent to the institution of the suit becomes co sharer in the joint holdings by purchase from another co- sharer, Section 21-A would have prevented them from defeating the plaintiffs right of pre-emption. Ipso facto, the vendee/defendants Nos. 8 to 10 cannot derive any advantage from the purchase made by them from Jawala Parshad pendente lite. 19. The Hon'ble Apex Court also in a latest case titled as Prema (dead) through L.Rs. v. Surat Singh and others (supra) has discussed the scope of Section 21-A of the Act and laid down as under :- "A plain reading of the provision, extracted above, would show that it nullifies the effect of acquisitions of any right by the defendant in a pre- emption suit for the purpose of improvement of his status pendente lite except by way of inheritance or succession. On the clear language of the provisions, it is difficult to accede to the contention that Section 21-A of the Act would be attracted only in a case where one of the co-owners as a defendant in a pre-emption suit loses his status by virtue of being a co-vendee with a stranger and subsequently improves his status by acquiring pendente lite the right of the stranger vendee". 20. Thus from the law laid down in the case referred above, it is evident that any improvement made by the appellant in their status by way of purchase of land out of khewat of the suit land vide sale deed Ex. D5 is hit by Section 21-A of the Act and is not going to adversely affect the right of the plaintiffs respondents to pre-empt the sale dated 30.11.1998. 21. There is no dispute with the general proposition of law that the appeal is considered to be the rehearing of the matter and the appellate court passes its own decree. This proposition of law has been laid down in case Amarjit Kaur v. Pritam Singh (supra). That was a case entirely on different footings. In that case, a suit for pre-emption filed by the plaintiff pre-emptor was decreed. The appeal of the vendee was dismissed by the appellate court. Thereafter the appeal was preferred to the Hon'ble High Court. During the pendency of the appeal before the Hon'ble High Court the Punjab Pre-emption (Repeal) Act (11 of 1973) came into force. The Hon'ble High Court allowed the appeal of the vendee and dismissed the pre-emption suit holding that the provision of Section 3 of the aforesaid Act shall govern the decision as the appeal is rehearing and it would be passing the decree in suit for pre- emption. But in the instant case, the point in controversy is entirely different. Here question is up to what stage the plaintiff respondents 1 and 2 were required to show their right of pre-emption. 22. Full Bench of our Hon'ble High Court in case Ramji Lal and another v. State of Punjab and others, (1966)68 PLR 345 has laid down as under :- Held, that it is a settled rule in pre-emption law that a pre-emptor must maintain his qualification to pre-empt, to the date of the decree of the first Court only, whether that decree is one dismissing the suit or decreeing it and is loss of qualification, whether by his own act or by an act beyond his control, after the date of that decree does not affect the fate of his claim in the suit. A pre-emptor in whose favour a pre-emption decree has been given in the first court need not retain his superior right of pre-emption till the hearing of the appeal by the vendee. A notification under Section 8 of the Punjab Pre-emption Act, taking away his right of pre-emption in the property, issued during the pendency of appeal against the decree does not take away the already exercised right of pre-emption so as to defeat his suit. 23. In case Jagdish Singh and others v. Dalip Singh and others (supra) our Hon'ble High Court has again took the same view and held as under :- Held, that it is well established by now that a pre-emptor has to show that he had a right of pre-emption on the date of the sale, as also on the date of suit, which right should continue up to date of decree of the trial Court and not beyond that date. This where it was pleaded on behalf of the vendee that the joint land out of which a co-sharer had sold a specific khasra number had been partitioned during the pendency of the appeal by the vendee with the result that the vendor and the pre-emptor had ceased to be a co-sharer and as such the pre- emptor had ceased have the right of pre-emption as a co-sharer. Held (repelling the said contention), that there was no merit in the same. 24. In case Didar Singh v. Ishar Singh (supra) again our Hon'ble High Court held that the plaintiff pre-emptor is required to maintain his qualification up to the date of passing of the decree by the trial court and he need not retain his superior right of pre-emption till hearing of the appeal by the vendee. So, in view of the consistent rule of law laid down in the above noted cases, plaintiff respondents 1 and 2 were required to show their superior right of pre-emption only up to the date of decree passed by the learned trial Court which have been passed in this case i.e. on 31.7.1993." ;