Prem Chand Jain, J.
1. Partap Singh has filed this appeal under Clause X of the Letters Patent against the judgment and decree of a learned single Judge of this Court dated May 7, 1975 by which the appeal filed by Nirmal Singh and others was allowed. The facts of the case, on which there is no dispute, are as follows:--
Vir Singh son of Saudagar Singh sold his agricultural land measuring 67 Kanals 4 Marias situated in village Sur-singhwala to Nirmal Singh and others on December 16, 1967, for a consideration of Rs. 24,000. Partap Singh later on claiming himself to be the nephew of Vir Singh filed a suit for declaration and in the alternative for possession of the land in exercise of his superior right of pre-emption. The suit was contested by the vendee-defendants. On the pleadings of the parties, various issues were framed. During the course of trial, the relief on the basis of the declaration was given up and decree in the suit was claimed only on the basis of superior right of pre-emption. The trial Court found thatthe plaintiff had a superior right of preemption and accordingly passed a decree for possession by pre-emption on payment of Rs. 24,000. The plea in respect of improvements set up by the vendee-defendants was negatived. Feeling aggrieved from the judgment and decree of the trial Court, the vendees preferred an appeal which was dismissed by the learned Additional District Judge, Ferozepore. Still dissatisfied, the vendees preferred Regular Second Appeal No. 1835 of 1970, which, as earlier observed, was allowed by a learned single Judge of this Court on the ground that after the enforcement of the Punjab Pre-emption (Repeal) Act, 1973 (hereinafter referred to as the 'Repealing Act') no decree could be passed in a suit for preemption. Dissatisfied from the judgment and decree of the learned single Judge, the present appeal under Clause X of the Letters Patent has been preferred by the pre-emptor.
2. The Motion Bench at the time of the motion hearing admitted the appeal and ordered the same to be heard by a Full Bench. That is how the matter has been placed before us.
3. It was strenuously contended by Mr. Bahl, learned counsel for the appellant, that the vendees-defendants did not contest the superior right of preemption of the plaintiff; that only issue No. 10 relating to the improvements alleged to have been made was pressed before the learned Additional District Judge; that the decree for possession by pre-emption passed in favour of the plaintiff-appellant had become final as the same was not challenged on merits before the first appellate Court; that the regular second appeal filed in this Court by the vendees was only against compensation and that in this situation, the learned single Judge fell in error in invoking the provisions of the Repealing Act and in dismissing the suit of the plaintiff-appellant. It was also submitted by the learned counsel that an appeal against the decree of the first appellate Court in respect of improvements only, would not be deemed to be an appeal against the decree for possession by preemption and that while dismissing such an appeal which has been filed only in respect of compensation, no decree shall be deemed to have been passed by the Court in a suit for pre-emption after the coming into force of the Repealing Act. In support of the aforesaid contention,the learned counsel relied on the following two judgments:--
(1) Thakar Singh v. Partap Singh, 1960-62 Pun LR 732 : (AIR 1961 Punj 375); and (2) Aziz Din v. Sham Das, 91 Pun Re 1892.
It was further argued by the learned counsel that the regular second appeal was neither maintainable nor competent so far as the same related to the preemption decree and the defendants-vendees could not legally take up the pleas in the regular second appeal, which they had abandoned in the first appellate Court. In support of this contention, the learned counsel placed reliance on the following judicial pronouncements of the different High Courts:--
(1) Abdul Karim v. The Shop Thakar. Ran-Jaggu Rani, AIR 1923 Lah 124; (2) Muhammad Aslam v. F. Mehr Singh-Attar Singh, AIR 1927 Lah 768; (3) Dheru v. Hira Lal, AIR 1932 Lah 343; (4) Firm Meghraj Roormal v. Firm Anup Singh Battu Mal, AIR 1935 All 1004; (5) Bawa Singh v. Mt Taro, AIR 1951 Simla 239; (6) Sheo Prashad Rambhajan v. Kanhiyalal Ramniwas, AIR 1953 Ajmer 52; and (7) Ramanujamma v. Nagamma, AIR 1968 Andh Pra 223.
3-A. On the other hand, it was submitted by Mr. Sachdeva, learned counsel for the vendees-respondents that the regular second appeal was filed against the judgment and decree of the learned Additional District Judge affirming the judgment and decree of the trial Court and that the learned single Judge was right in holding that if the regular second appeal was to be dismissed, then It would result in passing a decree in a pre-emption suit which could not legally be done.
4. After giving my thoughtful consideration to the entire matter, in the circumstances of the case, I am of the view that there is considerable force in the contention of Mr. Sachdeva, learned counsel for the vendees-respondents. From the facts, as they appear from the file, there is no gainsaying that before the learned Additional District Judge, only the question of improvements was gone into and that no argument was advanced on any other issue. But it is equally clear that the decree for possession by pre-emption which had been passed by the trial Court had been challenged as a whole by the vendee-respondents before the first appellate Court by filing an appeal against that decree.After the dismissal of the appeal by the learned Additional District Judge, the vendees did not keep quiet and decided to file an appeal in this Court. It would be pertinent to observe that the appeal in this Court was also against the decree for possession by preemption that had been passed in favour of the plaintiff as is apparent from the grounds of appeal in which the vendees had challenged that no decree for possession by preemption could legally be passed in favour of the plaintiff. In this situation, Mr. Bahl is not justified in contending that the appeal in this Court had not been filed against the decree for possession by pre-emption. Further, I find no merit in this contention of the learned counsel also that all other pleas except the plea ' in respect of compensation having been abandoned before the first appellate Court, the appeal in this Court would be deemed to be an appeal only against the decree so far as it related to the question of compensation and the filing of such an appeal would not take away the effect of the decree for possession by pre-emption which had become final merely because the appeal in this Court was entertained against the pre-emption decree; After having entertained the appeal as filed, it had to be disposed of on merits. While doing so, it is correct that at the time of hearing, the appellant may not be permitted to agitate the points which had been abandoned in the first appellate Court and the appeal may be dismissed on that score; but even such a dismissal would result into the passing of a decree. As earlier observed, during the pendency of the appeal, the Repealing Act came into force and its provisions had to be given effect to. It has been authoritatively laid down by their Lordships of the Supreme Court in Amarjit Kaur v. Pritam Singh, 1975-77 Pun LR 19 : (AIR 1974 SC 2068), that an appeal is a re-hearing and that if the High Court were to dismiss the appeal then it would be passing a decree in a suit for pre-emption. Consequently, J find that the learned single Judge was right in allowing the appeal of the vendees in view of the coming into force of the Repealing Act.
5. It may be observed that I have no quarrel with the proposition enunciated in the judicial pronouncements referred to above, on which reliance was placed by Mr. Bahl, but all those decisions are distinguishable and do not apply to the facts of the case in hand. In this situation, no useful purpose would be served in burdening the judgment by discussing those decisions individually.
6. For the reasons recorded above, this appeal fails and is dismissed, but in the circumstances of the case I make no order as to costs.
7. Civil Miscellaneous Application No. 973 of 1977, filed by Thana Singh respondent, was not pressed during the course of arguments. Accordingly, the same is also dismissed.
R.S. Narula, C.J.
8. I agree.
Bhopinder Singh Dhillon, J.
9. I agree.