JAGDISH Vs. NATHI MAL KEJRIWAL

JUDGEMENT

(1.) Respondents 5 to 7-Aji Ram, Tota Ram and Hari Chand are sons of one Kesaria. The suit land belonged jointly to Respondents 5 to 7. They sold it to Respondents 1 to 4 - Nathi Mal Kejriwal, Radhey Shayam Kejriwal, Smt. Daropdi Devi and Nagar Mal Kejriwal, who were strangers to their family for a consideration of Rs. 33,000/under a sale deed registered on 25-10-1971. The petitioners, who claimed themselves to be the sons and nephews of the vendors, instituted a suit in Civil Suit No. 466 of 1972 on the file of the Sub-Judge, Ist Class, Palwal for possession of the suit land on payment of Rs. 33,000/- claiming that they were entitled to the right of pre-emption in respect of the suit land either under clause 'First' or 'Secondly' of S. 15(l)(a) of the Punjab Pre-emption Act, 1913 (hereinafter referred to as 'the Act') as in force in the State of Haryana or under clause 'First' or 'Secondly' of S. 15(l)(b) of the Act. The learned Sub-Judge upheld the plea of the petitioners and decreed the suit for possession of the suit land against Respondents 1 to 4 who had purchased the suit land as well as against Respondents 5 to 7 who had sold it subject to the petitioners paying a sum of Rs. 36,642/- which included the consideration of Rs. 33,000/and interest thereon at 8 per cent per annum. The learned Sub-Judge further directed the petitioners to deposit the sum of Rs. 36,642/- minus the zare punjam amount on or before 3rd May, 1976 and that on their failure to deposit the said amount, he directed that the suit should be deemed to have been dismissed with costs. Aggrieved by the judgment of the learned Sub-Judge, Respondents 1 to 4 filed an appeal before the District Judge, Gurgaon in Civil Appeal No. 69 of 1976. The, appeal was dismissed. Against the judgment of the learned District Judge, Respondents 1 to 4 filed a second appeal before the High Court of Punjab and Haryana in Regular Second Appeal No. 1504 of 1977. That second appeal was taken up for hearing. on 2nd May, 1986. By that time this Court had delivered its judgment in Atam Prakash v. State of Haryana, (1986) 2 SCC 249 declaring clauses 'First', 'Secondly', and 'Thirdly' of S. 15(l)(a), clauses 'First" 'Secondly', and 'Thirdly' of S. 15(l)(b), clauses 'First', 'Secondly' and 'Thirdly' of S. 15(l)(c) and the whole of S. 15(2) of the Act as ultra vires the Constitution. Following the said decision the High Court allowed the second appeal and dismissed the suit since the provisions under which the petitioners claimed the right of pre-emption had been declared void by this Court. This petition is filed praying for special leave to prefer an appeal against the judgment of the High Court in the second appeal.

(2.) At the hearing of this Special Leave Petition the learned counsel for the petitioners contended that even though the petitioners were not able to claim the right of pre-emption under clauses 'First' and 'Secondly' of S. 15(l)(a) or clauses 'First' and 'Secondly' of S. 15(l)(b) by reason of the decision in the Atam Prakash's case, (supra) they were entitled to claim the right of pre-emption under clause 'Fourthly' in S. 15(l)(b), of the Act. Section 15(l)(b) reads thus:

(3.) It is argued by the learned counsel for the petitioners that since the suit land belonged to the joint family and it had not been sold by all the co-sharers they were entitled to claim the right of pre-emption under clause 'Fourthly' of S. 15(1)(b) of the Act because they happened to be the non-alienating co-sharers. Although there is no specific finding that the property is the joint property in. this case, we shall assume for purposes of this judgment that the suit land was joint property. In order to understand the meaning of the words 'other co-sharers' in S. 15(l)(b) we have to read the Act as it stood before the decision in Atam Prakash's case, (Supra). It is, seen that the expression 'other co-sharers' in clause 'Fourthly' of S. 15(l)(b) of the Act refers to only those co-sharers who do not fall under clause 'First' or 'Secondly' or. 'Thirdly' of S. 15(l)(b) of the Act. Since the petitioners admittedly fall either under clause 'First' or under clause 'Secondly' of S. 15(l)(b) of the Act they are clearly outside the scope of clause 'Fourthly'. Therefore, the petitioners cannot claim the right of pre-emption under clause 'Fourthly'. We do not, therefore, find any substance in this contention which was urged for the first time before the High Court. The suit was, therefore, rightly dismissed, by the High Court holding that the petitioners were no longer entitled to any relief under the Act. This petition, therefore, fails and it is dismissed.