Skip to content


Dalip Singh Vs. Jaisi Ram and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtHimachal Pradesh High Court
Decided On
Case NumberRegular Second Appeal No. 44 of 1978
Judge
Reported inAIR1981HP49
ActsPunjab Pre-emption Act, 1913 - Sections 15, 15(1), 15(2), 22, 22(1) and 22(4); ;Code of Civil Procedure (CPC) , 1908 - Order 1, Rule 1 - Order 41, Rule 33; ;Hindu Succession Act, 1956 - Section 14 and 14(1)
AppellantDalip Singh
RespondentJaisi Ram and anr.
Appellant Advocate Ramesh Chand, Adv.
Respondent Advocate Chhabil Das and; Yoginder Singh, Advs.
Cases ReferredJai Singh v. Mughla
Excerpt:
property - pre-emption - section 15 (2) (b) of punjab pre-emption act, 1913 - disputed land owned by x after his death his widow acquired absolute and full ownership - sold same to appellant for certain consideration - respondent who were sons of brother of x filed petition to pre-empt aforesaid sale - trial court passed decree of possession in favour of respondent - respondent submitted 1/10 of pre-emption money in trial court - appellant contended that suit deserved to be dismissed as there was submission of 1/10 of pre-emption money in place of statutory requirement of 1/5 of pre-emption money - further contended that suit was bad for misjoinder of respondent - further contended that right to preempt sale in dispute was governed by section 15 (2) (b) and not by 15 (1) (a) and as such.....t.r. handa, j. 1. this regular second appeal is from the judgment and decree dated 1-5-1978 passed by the district judge affirming that of the senior subordinate judge, hamirpur dated 21-2-1977 decreeing the suit of plaintiff-respondent no. 1 for possession of 21 kanals of agricultural land by way of pre-emption. 2. in order to appreciate the points in controversy between the parties which survive for consideration at this stage, it is considered necessary to narrate a few facts which are not in dispute, 3. the land forming the subject of dispute between the parties was originally owned by one shri bhikhoo who died issueless some time in 1928-23. on the death of shrj. bhikhoo his widow smt. shankari succeeded to that land as a limited owner under the law then in force. later with the.....
Judgment:

T.R. Handa, J.

1. This regular second appeal is from the judgment and decree dated 1-5-1978 passed by the District Judge affirming that of the Senior Subordinate Judge, Hamirpur dated 21-2-1977 decreeing the suit of plaintiff-respondent No. 1 for possession of 21 kanals of agricultural land by way of pre-emption.

2. In order to appreciate the points in controversy between the parties which survive for consideration at this stage, it is considered necessary to narrate a few facts which are not in dispute,

3. The land forming the subject of dispute between the parties was originally owned by one Shri Bhikhoo who died issueless some time in 1928-23. On the death of Shrj. Bhikhoo his widow Smt. Shankari succeeded to that land as a limited owner under the law then in force. Later with the enactment of the Hindu Succession Act, 1956, she acquired absolute and full ownership in this land by virtue of the provisions of Section 14 (1) of this Act with effect from 1-4-1956. After so acquiring absolute ownership in this land, she sold the same to the present appellant for a consideration of Rs. 18,000/- by means of a registered sale deed dated 17-1-1973

4. Shri Jaisi Ram respondent', No. 1 is the real brother of Smt. Shankari, the vendor while Sarvashri Kesru and Nathu respondents Nos. 2 and 3 are the sons of the real brother of Shri Bhikhoo, the deceased husband of Smt. Shankari. All these three respondents joined together as plaintiffs and filed the suit, which is the genesis of this appeal, to pre-empt the aforesaid sale.

5. Now in the light of the facts narrated above, the common case of these plaintiffs was very simple. They claimed that the land in dispute could either be taken as the self acquired property of the vendor, she having acquired the absolute and full rights of ownership therein only in 1956 under Section 14 (1) of the Hindu Succession Act, 1956 or in the alternative she could be said to have succeeded to this land through her husband. In the former case the right of pre-emption was governed by the provisions of Section 15 (1) (a) of the Punjab Pre-emption Act as applicable to Hima-chal Pradesh and Plaintiff No. l Jaisi Ram being the real brother of the vendor had the preferential right of pre-emption, and in the latter case the provisions of Section 15 (2) (b) of the Punjab Preemption Act governed the right of preemption and under this provision plaintiffs Nos. 2 and 3 being the sons of the real brother of the vendor's husband had such preferential right as against the appellant vendee who in either case being a stranger had no right of pre-emption.

6. The appellant defendant did not dispute that plaintiffs Nos. 2 and 3 were the sons of the real brother of the vendor's deceased husband but he denied their superior right of pre-emption on the plea that right of pre-emption in the instant case was governed by the provisions of Section 15 (1) (a) and not by Section 15 (2) (b) of the Punjab Preemption Act. In other words the appellant's case was that the land in question was the self acquired property of the vendor. As regards the claim of plaintiff No. 1, his preferential right of preemption was repudiated by the appellant on the pretext that this plaintiff was not related to the vendor in the manner alleged. The other pleas raised by the parties would be apparent from the following issues struck by the trial Court on such pleas :

1. Whether the plaintiffs have superior right of pre-emption? O.P.P,

2. Whether the sale price was actually paid or fixed in good faith? O.P.D.

3. If issue No. 2 is not proved, what was the market value of the suit land at the time of sale? O.P.P.

4. Whether the suit is bad for mis-joinder of plaintiffs? O.P.D.

5. Whether plaintiff No. 1 is estopped from filing this suit by his act and conduct? O.P.D.

6. Whether the defendant spent on stamps and registration of the sale deed? If so, how much and to what effect?

O.P.D.

7. Whether the defendant raised any construction over the suit land after the sale and before the filing of the suit? If so, of what costs and to what effect?

O.P.D.

8. Relief.

7. The learned trial Court found that plaintiff No. 1 was the real brother of the vendor and as such had a preferential right of pre-emption under Section 15 (1) (a) of the Punjab Pre-emption Act. The learned trial Court further found that the sale price of Rs. 18,000/- had been actually paid and bona fide fixed and in addition to this sale-price the vendee appellant had incurred an expense of Rs. l,080/- on the purchase of stamp paper for execution of the sale deed. The trial Court, however, disallowed the appellant's claim for registration expenses for want of proof in respect of the quantum thereof. After repelling the pleas of the appellant covered by issues Nos. 4 and 5 and allowing him Rs. 841/- on account of improvements effected by him on the suit land after the sale, the learned trial Court passed a decree for possession of the suit land on payment of Rs. 19,921/- in favour of plaintiff/respondent No. 1 and against the appellant-defendant. By necessary implication the suit of plaintiffs Nos. 2 and 3 was dismissed.

8. The appellant alone went in appeal before the District Judge against the judgment and decree of the trial Court. The learned District Judge affirmed the findings of the trial Court on all the issues and dismissed the appeal.

9. It may be mentioned at this stage that the plaintiffs had all jointly deposited the 1/5th pre-emption money in the trial Court in pursuance to the order passed by that Court. Although such deposit was made by the plaintiffs jointly, plaintiff No. 1 while appearing in the witness box admitted that he had contributed one half of this deposit and the other half had been contributed by the other plaintiffs Nos. 2 and 3. The appellant accordingly raised an additional plea before the first appellate Court that plaintiff No. 1 having deposited only l/10th of the pre-emption money as against the statutory requirement of l/5th his suit deserved to be dismissed on this short ground alone. This plea of the appellant, however, was repelled by the learned first appellate Court.

10. The following four points have been urged in this Court on behalf of the appellant in support of his challenge against the judgment and decree of the Court below :

(i) that plaintiff No. 1 being the brother of the vendor had no right of preemption inasmuch as the right to preempt in the instant case was governed by the provisions of Section 15 (2) and not Section 15 (1) of the Punjab Preemption Act, a plea which is obviously in direct contradiction to the stand earlier taken by the appellant in both the Courts below.

(ii) that the suit was bad for mis-joinder of plaintiffs and the plaintiffs having refused to cure this defect in spite of the same having been pointed out at the earliest possible opportunity, the suit deserved to be dismissed.

(iii) that the legitimate claim of the appellant in respect of registration expenses actually incurred by him could not be rejected by the Courts below.

(iv) that plaintiff No. 1 having deposited only l/10th of the pre-emption money as against the statutory requirement of l/5th, his suit was liable for dismissal on this short ground.

11. Taking up the last of these four points first I would like to point out at the very outset that there is no provision in the Punjab Pre-emption Act or in any other law which requires that in a suit for pre-emption the plaintiff must deposit l/5th or any other definite part of the pre-emption money failing which his suit shall be dismissed. The only provision in this behalf would be found in Section 22 of the Punjab Pre-emption Act which reads as under :

'22. Plaintiff may be called on to make deposit or to file security :--

(1) In every suit for pre-emption the Court shall at or at any time before thesettlement of issues require the plaintiff to deposit in Court such sura as does not, in the opinion of the Court, exceed one-fifth of the probable value of the land or property, or require the plaintiff to give security to the satisfaction of the Court for the payment, if required, of a sum not exceeding such probable value within such time as the Court may fix in such order.

(2) In any appeal the Appellate Court may at any tune exercise the powers conferred on a Court under Sub-section (1).

(3) Every sum deposited or secured under Sub-section (1) or (2) shall be available for the discharge of costs.

(4) If the plaintiff fails within the time fixed by the Court or within such future time as Court may allow to make the deposit or furnish the security mentioned in Sub-section (1) or (2), his plaint shall be rejected or his appeal dismissed as the case may be.

(5) (a) If any sum so deposited is withdrawn by the plaintiff, the suit or appeal shall be dismissed.

(b) If any security so furnished for any cause becomes void or insufficient, the Court shall order the plaintiff to furnish fresh security or to increase the security, as the case may be, within a time to be fixed by the Court, and if the plaintiff fails to comply with such order, the suit or appeal shall be dismissed.

(6) The estimate of the probable value made for the purpose of Sub-section (1) shall not affect any decision subsequently come to as to what is the market value of the property.'

A bare reading of this section would suggest that in a suit for pre-emption the trial Court is in the first instance required to form an opinion with respect to the probable value of the property forming subject of the sale sought to be pre-empted. After it has formed such opinion, the Court must pass an order under Sub-section (1) calling upon the plaintiff either (i) to deposit in Court a specified sum which must not exceed !/5th of such probable value or (ii) to give security to the satisfaction of the Court for payment, if required, of a sum not exceeding such probable value within a specified time. It is thus the duty of the Court to specify both the sum which the plaintiff must deposit as, also the time within which the deposit; is to be made. Such sum cannot exceed l/5th of the probable value as determined by the Court but there is no bar for the Court to call upon the plaintiff to deposit any sum less than this l/5th of the probable value of the property indispute.

12. Now in the instant case on the plaint being presented to it the learned trial Court passed the following order on 10-1-1974:--

'Present counsel for the plaintiffs. Register. Defendants be summoned for 13-2-1974. P. F. etc., be paid within two days. l/5th of the sale proceeds be deposited till then.'

Now this order only shows that the Court had called upon the plaintiffs jointly to deposit l/5th of the sale pror ceeds. It is admitted that 1/5th of such sale proceeds comes to Rs. 3,600/- and this amount was jointly deposited by the plaintiffs in Court on 11-1-1974, that is, within tha tune specified by the Court. On the next date of hearing, that is 13-2-1974, the Court recorded in its order that l/5th of the sale proceeds had been deposited. The plaintiffs had thus complied with the order passed by the Court under Sub-section (1) of Section 22 of the Punjab Pre-emption Act and there was thus no question of their suit being dismissed under Section 22 (4) of the said Act.

13. Now coming to point No. (iii) regarding the grievance of the appellant that his legitimate claim for registration expenses actually incurred by him had been illegally disallowed by the Courts below, I find no substance in this grievance for the simple reason that the appellant was not only to establish that he had actually incurred such registration expenses but he had further to establish the exact amount of such expenses to enable the Court to allow the same to him. The trial Court has observed that the appellant furnished no proof of the exact amount incurred by him towards the registration expenses. The appellant could have easily proved this amount by producing the receipt issued to him by the office of the Sub-Registrar when this amount was paid by him. Neither he produced such receipt nor led any other evidence from which the amount actually incurred by him towards registration expenses could be ascertained. In these circumstances the trial Court was justified in refusing to allow such expenses to the appellant.

14. As regards the plea of the appellant that the suit was bad for misjoinderof plaintiffs, the same appears to be equally devoid of force. Before it can be said that there was a misjoinder of plaintiffs in this case, it has to be shown that there was a joinder of a person as plaintiff contrary to the provisions of the Code of Civil Procedure. In case all these plaintiffs could be joined in one suit under the provisions of the Code, there would obviously be no misjoinder. Now Rule 1 of Order 1 of the Code of Civil Procedure specifically lays down that all persons may be joined in one suit as plaintiffs where -- (i) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist in such persons, whether jointly, severally or in the alternative; and (ii) if such persons brought separate suits, any common question of law or fact would arise. In the instant case the right to relief claimed in the suit is in respect of or arises out of the same act, namely, the sale made by Smt. Shankari vendor in favour of the appellant. The right to relief is alleged to exist either in favour of plaintiff No. 1 or in the alternative in favour of plaintiffs Nos, 2 and 3. Again in case these plaintiffs had brought separate suits many common questions of law and fact would have arisen, such common questions being whether the right to pre-empt the sale was governed by Section 15 (1) or Section 15 (2) of the Punjab Pre-emption Act, whether the sale price mentioned in the sale deed had been actually paid and bona fide fixed and if not the market value of the subject of sale, whether the appellant vendee effected any improvements on the subject of sale after the sale and if so of what value and to what effect etc. The joinder of the plaintiffs who claimed the right to pre-empt the sale in dispute in the alternative was thus allowed by the provisions of Order I, Rule 1, C. P. C. and in this view it is not possible to say that there was a misjoinder of plaintiffs in the instant case.

15. Coming next to the findings of the Courts below on issue No. 1 which has been the main target of attack launched on behalf of the appellant in this Court, I must admit that I find a good deal of force and substance in the contention of the learned counsel for the appellant that the right to pre-empt the sale in dispute was governed by Section 15 (2) (b) and not by Section 15 (1) (a) of the Punjab Pre-emption Act and as suchplaintiff No. 1 who is the brother of the vendor had no right of pre-emption. For a proper appreciation of the arguments advanced by the learned counsel for the appellant it is considered desirable to quote the relevant provisions of Section 15 of the Punjab Pre-emption Act :

'15. Persons in whom right of preemption vest in respect of sales of Agricultural land and village immovable property.

15. (1) The right of pre-emption in respect of agricultural land and village immovable property shall vest :--

(a) where the sale is by a sole owner :--

First, in the son or daughter or son's son or daughter's son of the vendor or;

Secondly, in the brother or brother's son of the vendor or;

Thirdly, in the father's brother or father's brother's son of the vendor.

Fourthly, in the tenant who holds under tenancy of the vendor, the land or property sold or a part thereof.

(b) & (c) xxxxx

(2) Notwithstanding any thing contained in Sub-section (1) :--

(a) where the sale is by a female of the land or property to which she has succeeded through her father or brother or the sale in respect of such land or property is by the son or daughter of such female after inheritance, the right of pre-emption shall vest :--

(I) if the sale is by such female, in her brother or brother's son;

(II) if the sale is by the son or daughter of such female, in the mother's brother or the mother's brother's sons of the vendor or vendors.

(b) where the sale is by a female of the land or property to which she has succeeded through her husband or through her son, in case the son has inherited the land or property sold, from his father, the right of pre-emption shall vest :--

(i) First, in the son or daughter of such (husband of the) female.

(ii) Secondly, in the husband's brother or the husband's brother's son of such female.'

It would be noticed that Section 15 (1) (a) deals with the right of pre-emption when the sale is by a sole owner irrespective of the fact whether the vendor is a male or female and regardless of his/her source of acquisition of the subject of sale Section 15 (2) (a) on theother hand deals with the right of preemption where the sale is by a female of the land or property to which she has succeeded through her father or brother or the sale of such land or property is by the son or daughter of such female after inheritance. Section 15 (2) (b) similarly deals with the right of pre-emption where again the sale is by a female of the land or property to which she has succeeded through her husband or through her son, in case the son has inherited the land or property sold, from his father.

16. Now instances can easily be comprehended where for the purposes of determining the preferential right of pre-emption, a case would attract the application of both Section 15 (1) (a) as, also Section 15 (2). A female may be the sole owner of the land or properly sold by her which fact would be sufficient to attract the application of the pro-visions of Section 15 (1) (a) and at the same time she may have succeeded to such land or property through her husband so as to attract the provisions of Section 15 (2) (b) for determining the question as to in whom the right to preempt the sale would vest. If we remember that Sub-section (2) of Section 15 commences with a non obstante clause 'notwithstanding any thing contained in Sub-section (1)' there should be no difficulty in concluding that in such a case which prima facie seems to attract the: provisions of either of these two sections, the only sub-section that can be attrad-ed is Sub-section (2) since Sub-section (1) has to be read subject to Sub-section (2) and Sub-section (2) is to be read regardless and irrespective of what is contained in Sub-section (1). It, therefore, follows that before applying the provisions of Section 15 (1) (a) it has to be ruled out that the case does not attract the provisions of Section 15 (2).

17. Now there can be no dispute that in the instant case the sale was made by a sole owner and hence it would attract the provisions of Section 15 (1) (a). The further question, however, which needs to be examined is if at the same time the provisions of Clause (b) of subsection (2) of Section 15 can also be legitimately attracted in this case. In order to attract the provisions of the latter sub-section, all that is required to show is that the vendor Smt. Shankari had succeeded to the land in dispute through her husband. In view of the admittedposition that the land forming the subject of the sale in dispute originalry belonged to her husband Shri Bhikhoo and that the vendor succeeded to this land only on the death of and as next heir of her husband, I see no reason why the right to pre-empt the sale in dispute should not be governed by Section is (2) (b).

18. In returning their findings on this issue in favour of plaintiff No. 1, the brother of the vendor, both the Courts below have relied upon a Division Bench judgment of the Punjab and Haryana High Court delivered in the case Jai Singh v. Mughla reported in (1967) 69 Punj LR 475. The counsel for the appellant in the Court below also appears to have been prompted by this very judgment while conceding this point in favour of plaintiff No. 1. The facts and circumstances of this reported case were similar to this case. In that case, the vendor's husband's brother had filed a suit to pre-empt the sale of some agricultural land which the vendor had inherited from her husband before the enactment of the Hindu Succession Act, 1956 and of which she had become the full owner by virtue of the provisions of Section 14 (1) of the said Act before the date of the sale. The learned Judges constituting the Division Bench in this case held that the subject matter of the sale made by the widow and which was sought to be pre-empted was not the same as the widow had inherited from her husband. According to the learned Judges, with the coming into force of Sub-section (1) of Section 14 of the Hindu Succession Act, 1956, the lesser estate of the widow she had inherited from her husband had merged into the larger estate created by law and on such merger, the erstwhile life estate of the widow became extinct and inextricably mixed up with the absolute ownership of the property. In this view of the matter, the Bench held that a widow who originally succeeded to some land or property through her husband as a limited owner under the Hindu Law, was not within the meaning of Clause (b) of subsection (2) of Section 15 of the Pre-emption Act, deemed to have 'succeeded' to the absolute and full ownership of the estate in the said land or property which she acquired under Section 14 (1) of the Hindu Succession Act, on the coming into force of the said provision, by the merger of her lesser estate into thegreater one, and that, therefore, a sale of such absolute estate by her after the coming into force of the Succession Act, was pre-emptible under Sub-section (1), and not under Sub-section (2) of Section 15 of the Pre-emption Act. The learned Judges thus invoked the doctrine of merger in arriving at their conclusion that the estate inherited by the widow from her husband became extinct with effect from 1-4-1956 as a result of its merger with the greater estate conferred upon her by Section 14 (1) of the Hindu Succession Act.

19. After giving my most careful consideration to the reasonings advanced in Jai Singh's case (1967-69 Pun LR 475) (supra) and with utmost regard to the Judges who delivered this judgment, I find it difficult to accept if the doctrine of merger could be attracted in such a case for extinguishing the estate which the widow had inherited from her husband. In Stroud's Judicial Dictionary Vol. III at page 1781, 'merger' is defined as follows :

'Whenever a greater estate and a less coincide and meet in one and the same person, without any intermediate estate the less is immediately annihilated; or in the law phrase, is said to be merged, that is, sunk or drowned in the greater'. In Corpus Juris Secundum, Volume 57, at page 1068, 'merger' is explained in the following words :--

' 'Merger1 is defined generally as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased; and an absorption of swallowing up so as to involve a loss of identity and individuality.

In law it is the absorption or extinguishment of one estate or contract in another. It is said that merger is an operation of law not depending on the intention of the parties.'

In Aiyar's Law Lexicon (1940 edition) at page 809, 'merger' is defined as below :--

'Merger is the destruction or 'drowning' by operation of law of the less in the greater of two estates coming together and vesting without any intervening estate in one and the same person in the same right.'

Merger thus necessarily presupposes the existence of two independent things or estates, the greater of which would swallow up or may extinct the lesser oneby the process of absorption. The term 'estate' would of course include land as also an interest in the land. Now in the instant case Shri Bhikhoo the deceased husband of the vendor was admittedly during his lifetime the absolute owner of the land in dispute in the sense that all interests in this land vested in him. On his death his widow Smt. Shankari vendor being his next heir succeeded to this land though under the law then in force she got a limited estate or a restricted estate in the land inherited by her. Her estate was limited in the sense that she did not enjoy the absolute powers of alienation over this land and she could alienate the same only in certain contingencies. The fact, however, remains that the whole estate vested in her and her alone and she represented it completely. None else had any interest in this land. Looking from this point of view it can be said that there was only one estate and the same vested in the widow. In case there was some interest in the land absent from the estate of the widow, it was because of the fact that such an interest was not supposed to exist during her lifetime under the law then in force. This absent interest thus could not vest in any other person so as to constitute another estate. Thus there existed no other estate smaller or greater with which the estate inherited by the widow could merge. Before the enactment of Section 14 (1) of the Hindu Succession Act there were certain restrictions placed on the right of a widow to alienate the estate inherited by her from her husband and she could make such alienation only in certain contingencies. These restrictions had been placed by the law itself. Section 14 (1) of the Hindu Succession Act has now removed or abolished these restrictions. This provision has thus simply enlarged the former restricted estate of the widow into an absolute one. This enlargement of the restricted estate previously enjoyed by the widow would not in the strict sense amount to merger of two estates so as to have the effect of extinguishing one of them. I would accordingly find that the widow had succeeded to the land in dispute through her husband and that the sale was, therefore, pre-emptible under Clause (b) of Sub-section (2) of Section 15 and this being so Section 15 (i) (a) could not apply in this case. Plaintiff No, 1 whois the brother of the vendor had, therefore, no right to pre-empt the sale indispute.

20. In the view that I have taken above with respect to the provisions of the Pre-emption Act that would apply for the purposes of determining the right of pre-emption in the instant case, the decree passed by the trial Court and affirmed by the first appellate Court in favour of plaintiff-respondent No. 1 must be reversed and the suit of this plaintiff dismissed. Whether for the same reasons as prevailed with this Court in reversing the decree passed in favour of plaintiff-respondent No. 1, this Court should reverse the decree of dismissal passed against plaintiff-respondents Nos. 2 and 3 by the trial Court and decree the suit of these plaintiffs is the last question that need be answered in this appeal.

21. As observed earlier there was no clash or dispute between the plaintiffs inter se who had joined together in the same suit to exercise their right of preemption in the alternative. Their common claim was that in case the right to pre-empt was found to exist with plaintiff No. 1, the decree be passed in his favour and in case such right vested in plaintiffs Nos. 2 and 3, the decree be passed in favour of these plaintiffs. There was no specific plea raised on behalf of any of the plaintiffs if the right of preemption vested in a particular set of the plaintiffs and not in the other. Plaintiffs Nos. 2 and 3 had, therefore, no cause of grievance when the suit was decreed in favour of plaintiff No. 1 and their suit was dismissed since the decrees so passed were in accordance with their own prayer made in the suit. That is why these plaintiffs did not choose to prefer an appeal against the judgment and decrees of the trial Court dismissing their suit and decreeing that of plaintiff No. 1. Now dismissal of the suit of plaintiff No. 1 sequel to the reversal by this Court of the findings of the Courts below on issue No. 1 would give rise to rather a curious situation. The suit of plaintiffs Nos. 2 and 3 stands dismissed by the Courts below on the findings that the right to pre-empt the sale in dispute was governed by Sub-section (1) and not Sub-section (2) of Section 15 of the Preemption Act and hence such right vested in plaintiff No. 1 and not in plaintiffs Nos. 2 and 3. The suit of plaintiff No. 1would now be dismissed on the findings that the right to pre-empt this disputed sale is governed by Sub-section (2) and not Sub-section (1) of Section 15 of the Pre-emption Act and hence vests in plaintiffs Nos. 2 and 3 and not in plain-tiff No. 1. This naturally would amount to giving recognition to two diametrically opposite contradictory and inconsistent decisions on the same question and between the same parties in the Home suit. Such a situation must be avoided or else it is likely to result in grave in-justice.

22. The Code of Civil Procedure has made ample provision for meeting a situation of this type. This provision would be found in Rule 33 of Order 41 of the Code which reads as under :--'Rule 33. Power of Court of Appeal. --The appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection, and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees'. It is obvious that this rule confers plenary powers on the appellate Court to enable it to do full and complete justice between the parties and to pass such decree or order as ought to have been passed by the Court of the first instance or as the facts and circumstances of a particular case may demand. The appellate Court can exercise such power notwithstanding that the party in whose favour the power is intended to be used has not preferred any appeal or cross objections before it. Again as is explicit from the language of this rule, in exercising this power of doing substantial justice between the parties, the appellate Court can not only interfere with the decree under appeal by modifying it in any manner it likes, even, by granting relief to a respondent who has not come up in appeal, but where more than one decrees are passed in the suit, the appellate Court in exercise of this power can interfere with any of such decrees irrespective of the fact whether an appeal against such decree has been preferred or not. It would be always desirable on the part of the appellate Court to exercise this discretionary power whenever the ends of justice so demand and especially when it is satisfied that (i) there were good reasons for the party in whose favour this discretion is sought to be exercised, for not having filed any appeal or cross objections and (ii) interference in favour of such party is rendered necessary as a result of the conclusion to which the appellate Court comes in deciding the appeal. Both these conditions exist in the instant case and in my view it is, therefore, a fit case where in exercise of its power vested in it under Order 41 Rule 33, the appellate Court should while reversing the decree under appeal, also reverse the decree of the trial Court dismissing the suit of plaintiffs Nos. 2 and 3 and pass a decree in favour of these plaintiffs of the nature claimed by them in the suit.

23. In the result I would set aside the decree passed by the trial Court in favour of plaintiff No. 1 and dismiss his suit. Instead I would pass a decree for possession by way of pre-emption in respect of the suit land on payment of Rs. 19,921/- in favour of plaintiff-respondents Nos. 2 and 3 and against the appellant defendant. Plaintiff-respondents Nos. 2 and 3 shall be liable to deposit the aforesaid pre-emption money within three months from to-day failing which their suit shall be deemed to have been dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //