RAM KANWAR Vs. KEWAL SINGH

JUDGEMENT

(1.) In the maze of las, we are concerned with facts briefly stated in civil appeal no. 417 of 1997 and civil appeal no. 4948 of 2001 disposed of by this Court vide its judgment dated 31.7.2001, with a number of connected matters. LA. No. 5 of 2004 In I. A. No. 3 of 2001 In civil Appeal No. 417 of 1997:

(2.) On 6.9.1988, Savitri Devi (vendor) sold lands measuring 76 kanals 9 marlas of distinct killa numbers. Ram Kanwar (plaintiff-appellant) filed a suit for possession of the above lands on the plea that he was co-sharer at all material times and as such he had a preferential right to acquire it. The said suit was contested by the vendees (defendants respondents). On 15.1.1993, the suit was dismissed by the trial court holding that the plaintiff-appellant was not a co-sharer in the suit land. On appeal from the judgment and decree of dismissal of the suit, the first appellate court, by order dated 22.2.1995, reversed the findings of the trial court holding that the plaintiff-appellant (Ram Kanwar) was a co-sharer at all material times. Consequently, the suit was decreed in favour of the plaintiff and the judgment of the trial court was set-aside.

(3.) Being aggrieved, the defendants-vendees (respondents in civil appeal) preferred second appeal to the High Court under section 100 CPC. At this stage, it is important to note that between the judgment of the first appellate court dated 22.2.1995 and the filing of the second appeal in the high Court by the defendants-vendees (respondents) , the Haryana Assembly enacted Haryana Amending Act No. 10 of 1995 taking away the right of co-sharer to pre-empt sale by the co-owner. In view of the said Amending Act No. 10 of 1995, the high Court, in second appeal, passed the following order: "as per the decision of the Apex Court in ramjilal and Ors. etc. v. Ghisa Ram etc. JT 1996 (2) SC 649, a co-sharer has no right to claim a superior right of pre-emption. Since the lower appellate court decreed the suit of the plaintiff only on the ground that the plaintiff is co-sharer and so has a superior right of pre-emption which right in view of the amendment made by the Haryana Government has already been taken a way, appeal consequently deserves acceptance. Accordingly, i accept the appeal, set aside the judgment and decree of the lower appellate court and dismiss the suit filed by the plaintiff. "