1. This is defendant-vendees' appeal in a pre-emption suit against whom suit has been decreed by both the Courts below.
2. Prabhu son of Paras Ram was the owners of 8 kanals of land. He sold the same to the vendes-appellants for a consideration of Rs. 7000/-, vide registered sale deed dated 30th July, 1971. Ram Kishan plaintiff (now deceased) pre-empted the same claiming that he was the son of the brother of the vendor's father, while the vendees were the strangers.
3. The suit was contested inter alia on the ground that the plaintiff was estopped from filing the suit because of his act and conduct and secondly that they were tenants on the suit land under the vendor at the time of the sale, so the sale was not per-emptible.
4. The trial Court found that the plaintiff had a superior right of per-emption and the plea of the defendants that they were tenants on the land was negatived ultimately the plaintiff's suit was decreed on payment of 7700/-.
5. In appeal, the learned Senior sub-Judge, (with enhanced appellate power)' affirmed the said finding of the trail Court and thus maintained the decree passed in favour of the plaintiff.
6. Dissatisfied with same the vendees have come up in second appeal in this Court.
7. The learned counsel for the appellants contended that form the evidence on the record it has been proved that the vendees were the tenants on the suit land at the time of sale. The findings of the Courts below, in this behalf, according to the learned counsel, are wrong. However, I do not find any force in this contention. On the perusal of the entire evidence, it has been concurrently held by both, the Courts below that the defendants have miserably failed to prove that they were the tenants on the suit land. This being a finding of fact could not be challenged in second appeal.
8. It was next contended that admittedly the pre-emptor Ram Krishan died on 12th Nov., 1974, during the pendency of the appeal before the lower appellate Court. and in his place his son Jagir Singh was substituted as legal representative. According to the learned counsel, right of pre-emption being a personal right had come to an end on the death of Ram Krishan, pre-emptor, because his son Jagir Singh had no right to pre-empt the sale under the Act. It was further contended that in view of Section 31 of the Punjab Pre-emption Act, no decree could be passed in a suit for pre-emption, which would be inconsistent with the provision of the said Act. Since, according to the learned counsel, appeal was a re-hearing of the suit, no decree could be passed in favour of Jagir Singh son of the deceased pre-emptor. In support of his contention he referred to Full Bench judgment of this Court reported in Chandrup Singh v. Data Ram, 1982 Pun LJ 430: (AIR 1983 Punj and Har 1). Reference was also made to Mulla v. Godhu, AIR 1971 SC 89, wherein it was held that Section 31 was retrospective in operation and no decree could be passed in favour of a person who could not pre-emption the sale under the Act.
9. On the other hand learned counsel for the respondents cited Hazari v. Neki, ILR (1966) 1 Punj 333: (AIR 1966 Punj 348), Audh Behari Singh v. Gajadhar Jaipuria, AIR 1954 SC 417 and Gurdev Kaur v. Smt. Chanan Kaur, AIR 1971 Punj and Har 416.
10. I have heard the learned counsel for the parties and have gone through the case law cited at the bar. There is no judgment supporting the competition of the appellant that if the pre-emptor died in appeal after having obtained a decree from the trial Court in his favour, his legal representatives could not be substituted because no right to sue survives as a right of pre-emption being a personal right dies with the person. Where as on the other hand, the matter was duly considered by the Division Bench of this Court in Hazari' case. (AIR 1966 Punj 348)(supra) and it was held that merely because the pre-emptor died during the pendency of he appeal his estate is not divested of the title acquired by him before his death. His heirs represent his estate and are not pre-emptors when they are brought on the record as his legal representatives in appeal. The decree of pre-emption obtained by the deceased plaintiff-pre-emptor cannot, therefore, be set aside merely on the ground of his death during the pendency of the appeal and the vendee could succeed in appeal only on the merits of his defence. It was further held therein that the vendor (as legal representative) and his sons, when brought on the record as the legal representatives of the deceased pre-emptor-plaintiffs represent the estate of the deceased and do not become partied to the appeal in the capacity and status of a pre-emptor. In the event of the affirmance of the decree obtained by the deceased plaintiff, the decree will not be in favor of the vender and his sons as pre-empts or any one of them as pre-emptor but the decree will be in favour of them as representing the estate of the deceased preemptor. The decree cannot, therefore, be set aside on the ground that when affirmed, it will be in favour of the vendor and his sons. As regards the Full Bench judgment relied upon by the learned counsel, it was clearly observed in Para 6 of Chandrup Singh's case (AIR 1983 Punj & Har 1)(FB)(supra),
'What next calls for highlighting is that we are examining the matter within the narrow field where the plaintiff-pre-emptor dies during the pendency of the trial and before a decree is made in his favour. Case where a decree has been obtained, turn entirely on a different principle and are settled beyond cavil by the precedent of the final Court. This is so on the well established rule that once a decree has been obtained in Court, then it becomes property or the estate of the decree holder. There is little or no manner of doubt that property or estate arising from a decree of a Court having jurisdiction, are clearly heritable right which can be enforced or continued by the heirs or the legal representative. To repeat, cases after the grant of a decree of pre-emption appear to us on a distinct footing and are entirely out of our ken.'
11. In view of the above observations of the Full Bench it could not be successfully argued that the earlier upon by the learned counsel for the preemptor are not good law. As a matter of fact before the Full Bench, the case was whether the heirs of the pre-emptor, who died, during the pendency of the suit in the trial Court, could continue the suit even if he or any of them did not have independent right of pre-emption. The answer to this question given by the Full Bench was that purely statutory right of pre-emption rest wholly on blood relationship alone under Section 15(1) of the Punjab Pre-emption Act, and is not a heritable right and does not devolve on the heirs on the death of the plaintiff-pre-emptors before the grant of the decree in the suit. Thus the answer to the question posed was rendered in negative. As regards the Supreme Court judgment in Mulla's case (AIR 1979 SC 89)(supra); the question considered was as to whether Section 31 of the Punjab Pre-emption Act, which was introduced by amending Act No. 10 of 1960 was retrospective in nature or not. In that context it was held by the Supreme Court that it was retrospective in operation and no decree of pre-emption could be passed in favour of the appellants who were deprived in 1960 of their right to scepter such a decree in the suit. No such question arises:n the present case because the pre-emptor Ram Krishan, who filed the suit was never deprived of the right by virtue of Section 31 of the Act. Rather from this judgment it can safely be concluded that Section 31 relied upon by the learned counsel for the appellants is not at all attracted to the present case, where the pre-emptor had died during the pendency of the appeal, after having obtained the pre-emptive decree in his favour.
12. In view of the above discussion, this appeal fails and is dismissed with costs.
13. Appeal dismissed.