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 REPORTABLE

 IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION

 CIVIL APPEAL NO. 6391 OF 2003

Pirthi .... Appellant (s)

 Versus

Mohan Singh & Ors. .... Respondent(s)

 J U D G M E N T 

P. Sathasivam, J.

1) This appeal is directed against the final judgment and 

order dated 07.03.2002 passed by the High Court of Punjab 

and Haryana at Chandigarh in RSA No. 136 of 2001 whereby 

the High Court dismissed the appeal filed by the appellant 

herein.

2) Brief facts:

(a) The appellant-plaintiff and respondent No.5 - whose 

name has been deleted from the array of parties by this 

Court's order dated 08.08.2003, filed a suit for possession by 

 1

way of pre-emption being Civil Suit No. 107/92/93 against 

respondent Nos. 1-4 herein (Defendants) before the Civil Judge 

(Jr. Division), Bahadurgarh, Haryana claiming themselves to 

be co-sharers with the vendor - Shiv Lal-defendant No.3 

(respondent No.3 herein-since deceased, his legal 

representatives are on record), who sold away his half share of 

the suit land comprised in Khewat No. 22 (min.), Khasra Nos. 

47 and 48, Khasra No. 1043 measuring 3 bighas, 3 biswas 

pukhta 1058 (2-11) and Khewat No. 28 (min.), Khasra Nos. 

54-55. Khasra No. 5496/1693 (2-16) 5497/1693(1-5) total 

measuring 10 Bighas 8 Biswas to defendant Nos. 1 & 2 

(respondent Nos. 1 & 2 herein) by sale deed dated 08.06.1992 

for a consideration of Rs.1,40,000/- and for declaring the 

lease deed No. 326 dated 07.05.1992 illegal, null and void and 

unwarranted by law. Defandant Nos. 1 & 2 are brothers and 

defendant No. 4 (respondent No.4 herein) is their mother. 

(b) When the case was fixed for service of the remaining 

defendants, defendant Nos. 1 & 4 filed an application for 

dismissing the suit of the plaintiffs being not maintainable on 

the ground that after passing of the Punjab Pre-emption 

 2

(Haryana Amendment) Act, 10 of 1995, (hereinafter referered 

to as "the Act") the right of pre-emption on the basis of co-

sharership is not available to them. The Civil Judge (Jr. 

Division), by judgment dated 09.02.1996, accepting the 

application filed by the defendants dismissed the suit filed by 

the plaintiffs. 

(c) Aggrieved by the said judgment, the plaintiffs filed an 

appeal being Civil Appeal No. 23 of 1996 before the Additional 

District Judge, Jhajjar. By order dated 18.07.2000, the 

Additional District Judge dismissed the appeal filed by the 

plaintiffs. 

(d) Challenging the order passed by the Additional District 

Judge, Pirthi-plaintiff No.1 (appellant herein) filed regular 

second appeal being RSA No. 136 of 2001 before the High 

Court of Punjab & Haryana at Chandigarh. The High Court, 

by impugned judgment dated 07.03.2002, holding that the 

plaintiff/appellant had lost the character of a co-owner during 

the pendency of the suit, dismissed the appeal. Against the 

said judgment, the appellant-plaintiff has filed this appeal by 

way of special leave petition before this Court.

 3

3) Heard Mr. Mahabir Singh, learned senior counsel for the 

appellant and Mr. Pramod Dayal, learned counsel for 

respondent Nos. 2 & 4. Despite service of notice, respondent 

Nos.1 and 3 have not chosen to appear in-person or through 

counsel. 

Discussion:

4) It is the case of the respondents/defendants that 

superior right of pre-emption on the basis of co-sharership is 

not available to plaintiffs now. After passing of the Act, this 

right has been restricted only to the tenants and the plaintiffs 

have no locus-standi to file and pursue their suit as they are 

not claiming the right as tenants. It is the claim of the 

appellant/plaintiff that the suit in question was instituted 

prior to the amendment in the Punjab Pre-emption Act, 1913 

hence the amendment in the Act is not applicable to the 

present case. The trial Court accepted the objection of the 

defendants as to the maintainability of the suit and dismissed 

the same as not maintainable which was affirmed by the lower 

appellate Court. The same view has been reiterated by the 

High Court by dismissing the second appeal. 

 4

5) It is true that the suit, in the present case, was filed prior 

to the amendment in the Punjab Pre-emption Act, 1913. 

Section 15 of the Pre-emption law has been amended and 

notified vide Gazette Notification dated 17.05.1995 which 

reads as under:

 "15. Right of Pre-emption to vest in tenant - The right of 

 pre-emption in respect of sale of agricultural land and village 

 immovable property shall vest in the tenant who holds under 

 tenancy of the vendor/vendors the land or property sold or a 

 part thereof."

This change in the law affects all pre-emption cases based 

upon the co-sharership. In view of this change in the law, a 

co-sharer has no right to bring a suit for possession by way of 

pre-emption, hence the application filed by the defendants for 

dismissing the suit of the plaintiffs being not maintainable had 

been accepted by the trial Court and suit of the plaintiff came 

to be dismissed. This was affirmed by the lower appellate 

Court and finally by the High Court which order is under 

challenge in this appeal. 

6) While ordering notice on the special leave petition, even 

as early as on 02.09.2002, it was specifically mentioned that 

as to why the case be not decided in the light of a Constitution 

 5

Bench judgment in Shyam Sunder and Others vs. Ram 

Kumar and Another, (2001) 8 SCC 24. 

7) In Bhagwan Das (dead) by LRS. and Others vs. Chet 

Ram, 1971 (1) SCC 12, a three-Judge Bench of this Court, 

while considering right of pre-emption has held that pre-

emptor's right should subsist till institution of suit for pre-

emption and passing of decree. It was further held that the 

rule that a pre-emptor must maintain his qualification to pre-

empt up to the date of decree was recognized as well settled. 

8) In Rikhi Ram and Another vs. Ram Kumar and 

Others, (1975) 2 SCC 318, again, a three-Judge Bench of this 

Court, while considering right of pre-emption under the 

Punjab Pre-emption Act, 1913, after adverting to the principles 

laid down in Bhagwan Das (supra) and considering Section 

15(1) of the Punjab Pre-emption Act held that under the 

general law of pre-emption, it is firmly established that the 

decisive date as regards the right of pre-emptor to pre-empt 

the sale was the date of the decree. In other words, the pre-

emptor who claims the right to pre-empt the sale on the date 

of the sale must continue to possess that right till the date of 

 6

the decree. If he loses that right before the passing of the 

decree, decree for pre-emption cannot be granted even though 

he may have had such right on the date of the suit. 

9) Now, let us consider the decision of the Constitution 

Bench i.e. Shyam Sunder (supra) and its applicability to the 

case on hand. Both the above decisions being Bhagwan Das 

(supra) and Rikhi Ram (supra) were relied on by the 

Constitution Bench. 

10) The very same Haryana Amendment Act, 10 of 1995, 

which introduced Section 15, was considered by a 

Constitution Bench in Shyam Sunder (supra). The question 

posed before the Constitution Bench was: 

 "What is the effect of substituted Section 15 

 introduced by the Haryana Amendment Act, 1995 

 (hereinafter referred to as `the amending Act, 1995') 

 in the parent Act i.e. the Punjab Pre-emption Act 

 (hereinafter referred to as `the parent Act') as 

 applicable to the State of Haryana whereby the right 

 of a co-sharer to pre-empt a sale has been taken 

 away during the pendency of an appeal filed against 

 a judgment of the High Court affirming the decree 

 passed by the trial Court in a pre-emption suit?"

11) When in the case of Shyam Sunder (supra), the main 

appeal, i.e., Civil Appeal No. 4680 of 1993 came up for hearing 

 7

before a Bench of this Court, the Bench, on the question of the 

effect of the amendment made in 1995 in the parent Act, 

found that there is conflict in the view taken in the decisions 

of two three-Judge Benches of this Court, which are Didar 

Singh vs. Ishar Singh (2001) 8 SCC 52 wherein it was held 

that in a suit for pre-emption, the pre-emptor must prove his 

right to pre-empt up to the date of decree of the first court and 

any loss of right or subsequent change in law after the date of 

adjudication of the suit and during pendency of appeal would 

not affect the decree of the first court and Ramjilal vs. Ghisa 

Ram (1996) 7 SCC 507 wherein it was laid down that appeal 

being continuation of the suit, the right to claim pre-emption 

must be available on the date when the decree is made and is 

finally to be affirmed or needs to be modified at the time of 

disposal of the appeal therefrom, and since the amending Act 

came into force during pendency of appeal, the right and 

remedy of the plaintiff stood extinguished and as a result the 

suit must fail. In order to resolve the conflict between the 

aforesaid two decisions rendered by two different Benches, the 

Bench referred the appeal for decision by a Bench of five 

 8

Judges. It is in this way, the matter was heard by the 

Constitution Bench. 

12) The Constitution Bench noted the facts which have given 

rise to Civil Appeal No. 4680 of 1993. The defendant-

appellants herein purchased land measuring 54 kanals, 

situated in Village Rithal Phogat, being 1/2 share of the land 

of Khewat Nos. 204, 205 and 206, measuring 108 kanals for a 

sum of Rs 84,000/- from vendors viz. Bharpai, Chhoto and 

Pyari -- daughters of Bhagwana vide sale deed dated 

17-07-1985. The plaintiff-respondents herein claimed 

preferential right to pre-empt the sale in favour of the 

defendant-appellants on the ground that they are co-sharers 

by means of a civil suit laid before the Sub-Judge, Ist Class, 

Gohana. In the said suit, issues were framed and the trial 

court decided all the issues in favour of the plaintiff-

respondents and consequently on 30-5-1990 the suit was 

decreed. The respondents after passing of the decree by the 

court of first instance deposited the purchase money as 

required under Order 20 Rule 14 CPC. The appeal preferred by 

the appellants before the first appellate court and the second 

 9

appeal before the High Court were dismissed and the decree of 

the trial court was affirmed. The appellants thereafter 

preferred this appeal by way of special leave petition. During 

pendency of the appeal, Section 15(1)(b) of the parent Act, on 

the basis of which the suit was filed by the plaintiff-

respondents, was amended and was substituted by new 

Section 15 whereby the right of a co-sharer to pre-empt a sale 

was taken away. The substituted Section 15 of the Act has 

been quoted earlier.

13) Since several decisions have been cited, the Constitution 

Bench categorized those decisions and referred them as first, 

second and third categories of decisions. The first category of 

decisions are those wherein the view of law expressed is that 

in a suit for pre-emption, the pre-emptor must possess his 

right to pre-empt right from the date of sale till the date of 

decree of the first court, and loss of that right after the date of 

decree either by own act, or an act beyond his control or by 

any subsequent change in legislation which is prospective in 

operation during pendency of the appeal filed against the 

decree of the court of first instance would not affect the right 

 10

of the pre-emptor. The second category of decisions deals with 

the cases where right of a pre-emptor was taken away after the 

date of decree of the first court and during pendency of the 

appeal by statutory enactment which had retroactive 

operation. In such cases, it was held that the appellate court 

is competent to take into account legislative changes which 

are retrospective and accordingly affect the rights of the 

parties to the litigation. The decisions in the third category of 

cases are those where it has been held that appeal being a 

continuation of the suit, the right to pre-empt a sale must be 

available on the date when the decree is made and is finally to 

be affirmed or needs to be modified at the time of disposal of 

appeal and in case of loss of right by legislative changes 

during pendency of appeal, the suit for pre-emption must fail. 

After analyzing various decisions referred to in the first 

category, the Constitution Bench formulated the following 

legal principles:

 "1. The pre-emptor must have the right to pre-empt on the 

 date of sale, on the date of filing of the suit and on the date 

 of passing of the decree by the court of the first instance 

 only.

 11

 2. The pre-emptor who claims the right to pre-empt the sale 

 on the date of the sale must prove that such right continued 

 to subsist till the passing of the decree of the first court. If 

 the claimant loses that right or a vendee improves his right 

 equal or above the right of the claimant before the 

 adjudication of suit, the suit for pre-emption must fail.

 3. A pre-emptor who has a right to pre-empt a sale on the 

 date of institution of the suit and on the date of passing of 

 decree, the loss of such right subsequent to the decree of the 

 first court would not affect his right or maintainability of the 

 suit for pre-emption.

 4. A pre-emptor who after proving his right on the date of 

 sale, on the date of filing the suit and on the date of passing 

 of the decree by the first court, has obtained a decree for 

 pre-emption by the court of first instance, such right cannot 

 be taken away by subsequent legislation during pendency of 

 the appeal filed against the decree unless such legislation 

 has retrospective operation."

14) The legal position that emerges on review of the second 

category of decisions is that the appeal being a continuation of 

the suit, the appellate court is required to give effect to any 

change in law which has retrospective effect. In para 15, the 

Constitution Bench has held that the legal principle that 

emerges out of the aforesaid decisions is that an appeal being 

a continuation of the suit, the right to pre-empt must be 

available on the date when the decree is made and is finally to 

be affirmed or needs to be modified at the time of disposal of 

the appeal and where right and remedy of the plaintiff has 

 12

been taken away statutorily during pendency of appeal, the 

suit must fail.

15) The following discussion and conclusion in para 28 are 

relevant:

 "... ..... In Shanti Devi v. Hukum Chand, (1996) 5 SCC 768, 

 this Court had occasion to interpret the substituted Section 

 15 with which we are concerned and held that on a plain 

 reading of Section 15, it is clear that it has been introduced 

 prospectively and there is no question of such section 

 affecting in any manner the judgment and decree passed in 

 the suit for pre-emption affirmed by the High Court in the 

 second appeal. We are respectfully in agreement with the 

 view expressed in the said decision and hold that the 

 substituted Section 15 in the absence of anything in it to 

 show that it is retrospective, does not affect the right of the 

 parties which accrued to them on the date of the suit or on 

 the date of passing of the decree by the court of first 

 instance. We are also of the view that the present appeals 

 are unaffected by change in law insofar it related to 

 determination of the substantive rights of the parties and the 

 same are required to be decided in the light of the law of pre-

 emption as it existed on the date of passing of the decree."

16) After analyzing all the decisions cited therein, the 

Constitution Bench has concluded thus:

 "44. From the aforesaid decisions, the legal principle that 

 emerges is that the function of a declaratory or explanatory 

 Act is to supply an obvious omission or to clear up doubts as 

 to meaning of the previous Act and such an Act comes into 

 effect from the date of passing of the previous Act. Learned 

 counsel for the appellants strongly relied upon a decision of 

 a two-Judge Bench of this Court in Mithilesh Kumari v. Prem 

 Behari Khare in support of his argument. In the said 

 decision, it was held by this Court that the Benami 

 Transactions (Prohibition) Act, 1988 being a declaratory Act, 

 the provisions of Section 4 of the Act have retroactive 

 operation. The reliance on this decision by the appellants' 

 13

 counsel is totally misplaced as this decision was overruled in 

 R. Rajagopal Reddy v. Padmini Chandrasekharan wherein it 

 was held that the Act was not passed to clear any doubt that 

 existed as to the common law or the meaning of effect of any 

 statute and it was, therefore, not a declaratory Act.

 45. We have already quoted substituted Section 15 of the 

 amending Act but do not find that the amending Act either 

 expressly or by necessary implication intended to supply an 

 omission or to clear up a doubt as to the meaning of the 

 previous Section 15 of the parent Act. The previous Section 

 15 of the parent Act was precise, plain and simple. There 

 was no ambiguity in it. The meaning of the words used in 

 Section 15 of the parent Act was never in doubt and there 

 was no omission in its phraseology which was required to be 

 supplied by the amending Act. Moreover, the amending Act 

 either expressly or by implication was not intended to be 

 retroactive and for that reason we hold that amending Act 10 

 of 1995 is not a declaratory Act and, therefore, it has no 

 retrospective operation.

 46. For the aforestated reasons, we approve the view of law 

 taken in Didar Singh v. Ishar Singh and further hold that the 

 decision in the case of Ramjilal v. Ghisa Ram does not lay 

 down the correct view of law.

 47. The result of the aforesaid discussion is that the 

 amending Act being prospective in operation does not affect 

 the rights of the parties to the litigation on the date of 

 adjudication of the pre-emption suit and the appellate court 

 is not required to take into account or give effect to the 

 substituted Section 15 introduced by the amending Act.

 48. In view of what has been stated above, these appeals fail 

 and accordingly are dismissed, but there shall be no order as 

 to costs."

17) From the above discussion, particularly, in para 45, the 

Constitution Bench observed that the Amending Act 10/1995 

is not a declaratory Act and, therefore, it has no retrospective 

 14

operation. In para 46, the Constitution Bench has approved 

the view of law taken in Didar Singh (supra) and further held 

that the decision in the case of Ramjilal (supra) does not lay 

down the correct view of law. No doubt, in the penultimate 

para 47, the Constitution Bench has concluded that the 

amending Act being prospective in operation does not affect 

the rights of the parties to the litigation on the date of 

adjudication of the pre-emption suit and the appellate court is 

not required to take into account or give effect to the 

substituted Section 15 introduced by the amending Act. It is 

clear that the appellate court is not required to take into 

account or give effect to the substituted Section 15 introduced 

by the amending Act. On the other hand, as discussed and 

concluded in para 46, the dictum laid down in Didar Singh 

(supra) has been approved. In Didar Singh (supra), it was 

held that in a suit for pre-emption, pre-emptor must prove his 

right to pre-empt up to the date of the decree of the first court 

and any loss of right or subsequent change in law after the 

date of adjudication of the suit and pre-tendency of appeal 

would not affect the decree of the first court. The said view 

 15

has been approved by the Constitution Bench. In other words, 

in a suit for pre-emption, the pre-emptor must prove his right 

to pre-empt up to the date of decree of the first court. To put 

it clear, the pre-emptor must have the right to pre-empt on the 

date of sale on the date of filing of the suit and on the date of 

passing of the decree by the court of the first instance 

[Emphasis supplied]. In the case on hand, the amendment 

Act came into force with effect from 17.05.1995 and suit had 

been laid on 31.10.1992. In other words, on the date of 

institution of the suit, the plaintiff/pre-emptor had a right to 

claim "right of pre-emption". However, during the pendency of 

the suit, since the amendment Act came into force, deleting 

the right of pre-emption and in the absence of such right on 

the date of passing of the decree by the court of first instance, 

we are of the view that both the courts below have correctly 

appreciated the effect of the amendment and the High Court 

also rightly dismissed the second appeal holding that the 

plaintiff had lost the character of a co-owner during the 

pendency of the suit by virtue of the amendment Act. 

 16

18) In view of the above discussion and the interpretation of 

the Constitution Bench in respect of substituted Section 15 

introduced by the Haryana Amendment Act, 1995 in the 

Parent Act i.e. the Punjab Pre-emption Act, we concur with the 

view expressed by all the three courts including the High 

Court. Consequently, the appeal fails and the same is 

dismissed. No order as to costs. 

 ..........................................J. 

 (P. SATHASIVAM) 

 ..........................................J. 

 (H.L. GOKHALE) 

NEW DELHI;

September 2, 2011. 

 17

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