Bapna, J. - (1.) THIS is a second appeal by the vendees in a suit for pre-emption.
(2.) THE vendor Bhika sold a plot of land 17 yards - 28 yards in village Sherpur, demarcated by khasra No. 216, to Sheo Narain and Maha Singh by a document dated 29th September, 1943, for a consideration of Rs. 299/ -. THE present suit for pre-emption was instituted on 26th August, 1946, by Daya Kishna and Richhpal, who are collaterals of Bhika, having, descended from a common ancestor. THE defendants agreed that the plaintiffs and the vendor had descended from a common ancestor and the plaintiffs had a right of pre-emption, but it was pleaded that as they had failed to claim that right at the time of sale, they were estopped from asserting that right. THE vendees also claimed Rs. 2155/- on account of certain constructions having been made by them over the land. THE trial court, after evidence, gave a decree for pre-emption in favour of plaintiffs subject to payment of the amount of consideration plus Rs. 200/-on account of improvements. THE defendants vendees filed an appeal, and the amount of compensation was increased to Rs. 250/ -. In this second appeal it was argued that the Alwar State Pre-emption Act, 1946 (No. VII of 1946)came into force on the 28th June, 1946, and was not retrospective. It was argued that the present suit was not maintainable as there was no law of pre-emption on the date of the transaction of sale. It appears that Act No VII of 1946 was enacted owing to a judgment of the highest Court of Alwar dated 30th April, 1942, that there was no law or custom of pre-emption in Alwar. Thereafter many pending suits were dismissed, and people did not file any suits for pre-emption. Sec. 31 (1) of the Act provided for restoration of suits which had been dismissed on the ground that there was no law or custom of preemption on application being presented within three months next after the passing of the Act, and sub-sec. (2) permitted suits to be entertained if instituted within three months next after the passing of the Act inspite of the lapse of the ordinary period of limitation, if they had not been so filed after the 30th day of April, 1942. It is obvious that the legislature wanted to override the judgment of the judicial court by legislation, and while expressly mentioning in sec. 31 (1) of the Act that the suits restored will be tried if the claim was consistent with the provisions of the Act, the same provision though not specifically mentioned in sub-sec. (2) will be deemed to be applicable, for otherwise it would not be of any use to permit suits to be entertained in respect of causes of action which had already arisen if it were to be held that there was no law or custom prior to the enactment of Act No. VII of 1946. It was obviously intended that such suits were to be tried according to the provisions of the Act. It was next argued that it had not been proved that the land sold was agricultural. Even if that may not be so, it was certainly village immovable property as defined in sec. 3 of the Act, which could be subject to a right of pre-emption in the same manner as a sale of agricultural land. It was next argued that the vendor had a son alive, and, therefore, no other person had a right of pre-emption. According to sec. 15, which related to a right of pre-emption in respect of agricultural land and village immovable property, the right of pre-emption was declared to be vested in the persons in order of succession who but for such sale would be entitled on the death of the vendor to inherit the land or property sold. It only means that the son had a better right of preemption if he cared to assert it in preference to the collaterals. It was finally argued that the compensation allowed for improvements was low. No separate court-fee was filed in this respect nor has any figure been mentioned which the defendants consider themselves to be entitled to in addition to what has been allowed to them The question as to the value of compensation is a question of fact. This appeal has no force and is dismissed with costs. Learned counsel wants leave to appeal to a Division Bench, as the case involves the interpretation of sec. 31 of the Alwar Preemption Act Leave is hereby granted to appeal to a Division Bench. . ;