- (1.) THIS second appeal arises out of a suit for preemption in respect of field No. 122 measuring 11-1/2 Bighas Khewat No. 77/ 197 of village Jakhrana in erstwhile Alwar State, held in occupancy tenancy by Babulal Brahmin who sold it to the appellant for Rs. 1500/- on 30th April, 1942. The plaintiff respondent claimed right of preemption on the ground of his being a co-sharer.
(2.) THE suit was dismissed by the trial Court but that decree has been reversed in appeal by the learned District Judge, Alwar. Hence this second appeal by the vendee, In Alwar State the law of pre-emption came into force in 1946 and sec. 31 (2) of the Alwar State Preemption Act, 1946 (Act No. VII of 1946) (hereinafter called the Act) permitted the institution of suits relating to preemption within three months of the passing of the Act inspite of the lapse of the ordinary period of limitation. The present suit was therefore, filed within three months of the coming into force of the Act. There is no dispute that in case the plaintiff is found to have an enforceable right under the law, his right is superior to that of the vendee. Contentions of the learned counsel for the appellant are : (1) that no decree for preemption can be passed in favour of the plaintiff after the coming into force of the Rajasthan Zamindari and Biswedari Abolition Act, 1959, by which all right, title and interest of the Zamindars or Biswedars and of every person claiming through him in such estate has ceased and has vested in the State Government. As the land no longer vests in the vendee he cannot now legally convey it to the plaintiff. Reliance is placed on a decision of the Supreme Court in Ram Sarup vs. Munshi (1 ). (2) that this court should not pass such a decree in favour of the plaintiff. " respondent which cannot be executed now as the vendee cannot accept the price of the land which now vests in the State. (3) that the plaintiff has no right of preemption because it has neither been alleged nor proved that he is a member of an agricultural tribe in same group of agricultural tribes as the vendor as provided in section 14 of the Act, which is the main provision which gave the right of preemption to persons in Alwar State under the Act. Taking the first contention, it may be pointed out that the Rajasthan Zamin-dari and Biswedari Abolition Act, 1959 has not in any way amended, altered or repealed the provisions of the Alwar State Preemption Act, 1946. The vendor had sold his occupancy rights in which the plaintiff claimed to be a co-sharer and the above Act does not deal with such rights. Under the Rajasthan Tenancy Act (Act No. 3 of 1955) also the status of occupancy tenants became that of Khatedar tenants only. It is true that the right of preemption should subsist not only at the time of the sale but at the time of the suit and the decree as well ; but in the present case decree for preemption was passed in favour of the plaintiff by the learned District Judge before the coming into force of the Rajasthan Zamindari and Biswedari Abolition Act. It is a well settled rule of construction that in the absence of express words therefor, retrospective operation is not to be given to a statute so as to impair rights except as regards those relating to matters of procedure. There is no provision in the Rajasthan Zamindari and Biswedari Abolition Act which expressly or by necessary implication takes away the rights of the plaintiff respondent which he had obtained under the decree of the learned District Judge Alwar. It is true that an appellate court can take into account the state of law as it exists on the date when the appeal comes up for hearing because as pointed out by Varadachariar, J. in Lachmeshwar Prasad Shukul vs. Keshwarlal Chaudhuri (2) that the court of appeal in India is not merely a court of error and the hearing of an appeal under the procedural law of India is in the nature of rehearing and therefore, in moulding the relief to be granted in case on appeal, the appellate court is entitled to take into account even facts and events which have come into existence after the decree appealed against. Consequently, the appellate court is competent to take into account legislative changes since the decision in appeal was given and its powers ere not confined only to see whether the lower court's decision was correct according to the law as it stood at the time when its decision was given. " The same principle was approved by their Lordships of the Supreme Court in the case relied upon by the learned counsel for the appellant. But as stated earlier there is no provision in the Rajasthan Zamindari and Biswedari Abolition Act which expressly or by necessary implication takes away a right which has already vested in the plaintiff. The case relied upon by the learned counsel is quite distinguishable because there the Punjab Preemption Act of 1913 was amended by the Punjab Act of 1960 and by the latter Act section 15 of the Parent Act was repealed and in its place was substituted a new provision which omitted to confer a right of pre-emption in the case of persons 'owning land in the estate' as the original Sec. 15 (c) 'thirdly' had done. Section 31 of the amending Act read : - "no Court shall pass a decree in a suit for pre-emption whether instituted before or after the commencement of the Punjab Pre-emption (Amendment) Act, which is inconsistent which the provisions of the said Act. " Their Lordships of the Supreme Court agreed that there is a presumption against the retrospective operation of a statute and also the related principle that a statute will not be construed to have a greater retrospective operation than its language renders necessary, but on the language of section 31 quoted above it was held that it was plain and comprehensive so as to require an appellate court to give effect to the substantive provisions of the amending Act whether the appeal before it is one against a decree granting pre-emption or one refusing that relief, In their Lordships' opinion section 31 was plainly retrospective and was applicable to suits whether instituted before or after the coming into force of the amendment. This case therefore, is of no assistance to the appellant which was decided on the express language of the amending statute which was retrospective in operation. The plaintiff in this case has acquired a vested right by virtue of the decree passed in his favour by the district Judge Alwar and that right has not been taken away by the subsequent legislation that is the Rajasthan Zamindari and Biswedari Abolition Act. See Umrao vs. Lachhman (3) where it was held : "in the case of a suit for pre-emption it is not competent to an appellate court to pay regard to any events which may happen subsequent to the date of the first court's decree; if on the letter date the plaintiff had a subsisting right to pre-empt, he was entitled to succeed and his suit could not be defeated because by reason of some event, which had happened subsequent to the decision of the first court's he had lost the status of a co-sharer. " As regards the second contention the learned counsel has not been able to point out as to how the decree of this Court in favour of the plaintiff would become inexecutable The appellant is still in possession of the field as a khatedar tenant, whatever rights the appellant had acquired by virtue of the property shall now be transferred to the plaintiff on the execution of the decree. The respondent has already deposited Rs. 1500/- in the court after the decree was passed by the learned District Judge in his favour and it was on account of the stay order passed by this Court that the decree was not executed. I do not see why the appellant would not be entitled to receive that amount now. I, therefore, do not see any force in this contention. 8. In order to appreciate the third contention it is necessary to quote the relevant sections of the Alwar State Preemption Act, 1946 : - Sec. 14 - No person other than a person who was at the date of sale a member of an agricultural tribe in the same group of agricultural tribes as the vendor shall have a right of preemption in respect of agricultural land sold by a member of an agricultural tribe. Sec. 15 - Subject to the provisions of section 14, the right of preemption in respect of agricultural land and village immovable property, shall vest - (a) where the sale is by a sole owner or occupancy tenant or in the case of land or property jointly owned or held, is by all the co-sharers jointly, in the persons in order of succession who, but for such sale would be entitled, on the death of the vendor or vendors, to inherit the land or property sold; (b) where the sale is of a share out of joint land or property and is not made by all the co-sharers jointly, firstly, in the lineal descendants of the vendor in order of succession ; secondly, in the co-sharers, if any, who are agnates, in Order of succession ; thirdly, in the persons not included under firstly or secondly above, 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 ; fourthly in the co-sharers (c ). . . . . . . . . . . . . . . . . . . . . . . . . . . By section 3 (4) 'member of an agricultural tribe and 'group' of agricultural tribes' was assigned the same meaning as the term agriculturist in section 128 of the Alwar State Revenue Code of 1925. Section 128 of the Alwar State Revenue Code runs as under : 128 1 - A person who desires to make a permanent alienation of his land shall be at liberty to make such alienation where : (a) the alienor is a non-agriculturist, or (b) the alienor is an agriculturist and the alienee is also an agriculturist. (2) Except in cases provided in sub-section (1) a permanent alienation of land shall not take effect as such unless and until sanction is given there to by the Collector of the District ; provided that - (1) sanction shall not be necessary in the case of (a) a sale of a right of occupancy by a tenant to his landlord, or (b) a gift made in good faith for a religious or charitable purpose. (2) The Collector shall enquire into the circumstances of the alienation and shall have discretion to grant or refuse the sanction required by sub-section. (3) Alienation made in contravention of sub-section (1) and (2) shall be deemed null and void. Explanation I - The expression 'land means land which is not occupied as the site of any building in a town or village and is occupied or let for agricultural purposes or for purposes subservient to agriculture or pasture, and includes : (a) the sites of buildings and other structures on such land ; and (b) any right of occupancy. Explanation II - The expression 'agriculturist' means a resident of Alwar State who : (a) holds agricultural land and who or his ancestor in the male line has been continuously recorded as an owner of land or as an occupancy tenant in any estate in Alwar since the 1870 settlement, or (b) earns his livelihood wholly or principally by cultivating land either personally or through a servant, or (c) is a member of any one of the following tribes : (i) Rajput, (ii) Brahman, (iii) Jat, (iv) Ahir, (v) Mina, (vi) Gujar, (vii) Mali, (viii) Saiyed, (ix) Khanada, (x) Meo. Explanation III - The expression 'permanent alienation' includes sales, exchanges, gifts, wills and grants of occupancy rights. " It would therefore, be clear that by section 3 (4) of the Act the terms 'agricultural tribe' and 'group of agricultural tribes' were made synonymous with the term 'agriculturist' as defined in section 128 of the Alwar State Revenue Code quoted above. Any person who satisfied the qualifications mentioned in the definition of the term 'agriculturist' as given in section 128 of the Alwar State Revenue Code could be regarded as a member of an agricultural tribe in the same group of agricultural tribes, as vendor because the term' agricultural tribe' and the group of agricultural tribes' were also made synonymous. The contention of the learned counsel is that in order that section 14 of the Act could come into play it was necessary that the agricultural tribes should have been sub-divided into separate groups and since this was not done in Alwar State the plaintiff cannot claim a right of preemption because he cannot be said to be in the same group of agricultural tribe as the vendor. On behalf of the plaintiff reliance is placed on an unreported Single Bench decision of this Court in Nathuram vs. Sadhuram (Civil Second Appeal No. 83 of 1955, decided on 10. 5. 1957. In that case Bhandari J, after noticing the provisions of sections 14 and 3 (4) of the Act and section 128 of the Alwar State Revenue Code observed that : "the dominant intention of the framers of section 14 of the Act was that the land belonging to an agriculturist may not pass in the hands of non agriculturist by pre-emption as the sale from an agriculturist to a non-agriculturist is restricted in Sec. 128 of the Revenue Code. If that dominant intention is to be carried out, then sec. 14 of the Act may be put in the following language: - No person other than a person who was at the date of sale a member of an agricultural tribe shall have a right of preemption in respect of an agricultural land sold by a member of an agricultural tribe. " This will mean omitting any reference to group of agricultural tribes in sec. 14 and also in sec. 3 (4) as there is no such group in sec. 128 of the Alwar State Revenue Code. In this light the other words "in the same" and 'as a vendor' become clearly redundant: The learned Judge further observed that : "the draftsmen of sections 3 (4) and 14 by their unskillfulness nave brought about this clumsy state of affairs. The alternative for me is to give effect to the intention of the legislature by rejecting some words as redundant. '' The learned Judge in support of this view quoted some passages from Caries on Statute Law 5th Edition at page 100. Learned counsel for the appellant raised several objection to the correctness of the view taken by Bhandari, J. It is contended that the learned Judge has disregarded certain well settled rules of construction of statutes inasmuch as he has given effect to the supposed intention of the legislature and overlooked the plain and unambiguous language of section 14 and has also treated some words in this section as surplusage without any compelling reason. In my view the conclusion arrived at as regards the meaning to be given to section 14 of the Act by Bhandari J, if I may say so with respect, is quite correct and I entirely agree with it. The framers of the Alwar State Pre-emption Act did not differently treat the term 'member of an agricultural tribe' and 'group of agricultural tribes' and gave these terms the meaning assigned to the term agriculturist in section 128 of the Alwar State Revenue Code, 1925 as would be abundantly clear from sec. 3 (4) already quoted above. Having regard to this definition there can be no distinction between the terms' 'member of agricultural tribe' and member in the same group of 'agricultural tribes' both having the same meaning as 'agriculturist'. Therefore, looking to the definition clause all that is necessary to satisfy the requirement of section 14 of the Act is that the person claiming preemption should be at the date of the sale an agriculturist as defined in the Alwar State Revenue Code. If he fulfilled that condition he could claim right of pre-emption in order of priority as mentioned under section 15 of the Act regardless of the fact that no groups of agricultural tribes were formed in Alwar State. I, therefore, do not see any force in this contention either. All the contentions raised therefore, fail. This appeal is therefore, dismissed with costs. . ;