PERMOD KOHLI,J - (1.)RESPONDENT No. 2 - Bakshish Singh, now represented by L.Rs instituted suit for pre-emption claiming right of prior purchase in respect of the suit land which was sold by Amrik Singh, vendor to Kashmir Singh and Pritpal Singh, vide sale deed dated 23.5.1979 for consideration of Rs. 75,500/-. The basis for claim of pre-emption was that the plaintiff Bakshish Singh is the real brother of Amrik Singh, both being sons of late Kapoor Singh. Claim for such superior right was made, in view of the provisions of Section 15(1)(a) "Secondly" of the Punjab Pre-emption Act (hereinafter referred to as "the Act") as applicable to the State of Haryana, which inter alia provides for right of pre-emption to a blood relation, including a brother. The suit was decreed by the trial court vide judgment and decree dated 15.9.1982 by the Sub Judge Second Class, Karnal and appeal preferred therefrom before the Additional District Judge, Karnal by defendants - Kashmir Singh and Pritpal Singh, vendees also failed and came to be dismissed vide judgment and decree dated 30.5.1983. Thereafter, the present second appeal came to be filed in this Court.
(2.)DURING the pendency of this appeal, Clause "secondly" of Section 15(1)(a) of the Act was declared ultra vires the Constitution by the Hon'ble Supreme Court in the case of Atam Parkash v. State of Haryana and others, AIR 1986 Supreme Court 859. The respondents, however, moved an application being CM No. 1360-C of 1986 under Order 6 Rule 17 of CPC, seeking amendment of the plaint so as to add another ground for exercising the right of pre-emption that the respondents was a co-sharer in the suit land with his brother Amrik Singh at the time of sale of the land. This application, however, came to be dismissed by this Court vide order dated 22.5.1986 and in view of the judgment of the Supreme Court in the case of Atam Parkash (supra), the appeal was also dismissed on the ground that right of pre-emption does not survive. Plaintiff assailed the aforesaid judgment before the Hon'ble Supreme Court and the Hon'ble Supreme Court allowed the appeal vide its judgment dated 10.11.1994 and remanded the case to this Court for de novo decision of the second appeal on merits, by allowing the amendment of the plaint. It may be useful to refer to the concluding para of the observation/judgment of the Apex Court.
"The Second Appeal filed in the High Court by the respondent was allowed setting aside the decree in favour of the appellant passed by the trial court and affirmed in first appeal. The claim in the suit for pre-emption was based initially on the ground that the plaintiff (appellant) was the brother of the vendor and emphasis was not laid also on the fact that the plaintiff was a co-sharer as well. In view of the fact that the right of pre-emption based only on the ground of relationship as a brother was held to be unenforceable, an application for amendment of the plaint was made in the second appeal to claim pre-emption on the admitted fact that the plaintiff was also a co-sharer of the vendor. This amendment application was rejected by the High Court and the second appeal filed by the respondent was allowed. In our opinion, rejection of the amendment application to plead an additional ground to support the plaintiff's claim, which was based on an admitted fact was erroneous. The amendment sought to be made in the plaint ought to have been allowed. For the aforesaid reason, the appeal is allowed. The impugned judgment of the High Court is set aside. The amendment sought in the plaint in the above manner is allowed. The matter shall now go back to the High Court for a fresh decision of the second appeal on merits in accordance with law after hearing both sides. No costs."

Consequent upon the remand of the case to this Court, the defendants/appellants claimed right of reply to the amendment introduced pursuant to the orders of the Supreme Court. Accordingly, vide order dated 12.1.2005, the case was sent to the trial court to furnish report after permitting the defendant to file written statement to the amended plaint and after allowing the parties to lead evidence on the issues which may arise out of the amended pleadings. The trial court permitted the defendants to file written statement and also allowed the parties to lead their respective evidence. A report has been forwarded by the trial court vide its order dated 7.3.2006.

(3.)BEFORE the trial court, the defendant raised the plea of limitation and pleaded that the amendment to introduce new ground of pre-emption as a co- sharer is prospective in nature and suit is deemed to have been instituted from the date the amendment was allowed i.e. 10.11.1994 and sale having been effected on 23.5.1979, the suit is barred by limitation. It was further pleaded that vendees were tenant on batai/tehai over the land, so sale in their favour was not pre-emptible. The trial court framed following two issues :-
"1. Whether the plaintiff is entitled to pre-empt the sale in favour of defendant No. 1 on the ground of having superior right of pre-emption being a co-sharer in the land ? OPP 2. Whether the suit of the plaintiff is time barred ? OPD."