LexPIRTHI versus MOHAN SINGH & ORS.
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A B [2011] 11 S.C.R. 122 PIRTHI v. MOHAN SINGH & ORS . . (Civil Appeal No. 6391 of 2003) SEPTEMBER 2, 2011 [P. SATHASIVAM AND H.L. GOKHALE, JJ.] PUNJAB PRE-EMPTION ACT, 1913: c s .. 15 (as amended by Haryana Amendment Act 10 of 1995) - Right of pre-emption - Suit for pre-emption filed by co-sharer - During pendency of the suit s. 15 amended in 1995 ·- Suit dismissed by trial court - Judgment upheld by first appellate court and High Court -Held: Haryana 0 Amendment Act 10 of 1995 is not a declaratory Act and, therefore, it has no retrospective operation - 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 - Since the Amendment Act came into force during the pendency of the E suit, in the instant case, in the absence of "right of pre- emption" on the date of passing of the decree by the court of the first instance, all the three courts below including the High Court rightly dismissed the suit of the plaintiff. F The instant appeal arose out of the concurrent judgments of the three courts below, including the High Court, dismissing the suit for possession by way of pre- emption filed by the co-sharer plaintiff-appellant, as during the pendency of the suit before the trial court, s.15 G of the Punjab Pre-emption Act, 1913 was substituted by the Haryana Amendment Act 1 O of 1995 to the effect that right of pre.,.emption in respect of agricultural land would vest in the tenant who holds under tenancy of the vendor(s). H 122 PIRTHI v. MOHAN SINGH & ORS. 123 Dismissing· the appeal, the Court A HELD: 1. It is true that the suit, in the instant case, was filed prior to the amendment in the Punjab Pre- emption Act, 1913. The Pre-e.mption law has been amended and notified by Gazette Notification dated 8 17 .05.1995. Section 15 as amended provides that the right of pre-emption in respect of sale of agricultural land and village immoveable property shall vest in the tenant who holds under tenancy of the vendor(s) the land or property sold or a part thereof. This change in the law C 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. [para 5] [127-D-F] 1.2. The pre-emptor who claims the right to pre-empt D the sale on the date of the sale must continue to possess that right till the date of the decree. If he l.oses 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. [para 8] [128-0-E] E 1.3. The Constitution Bench in Shyam Sunders case* has observed that the Amending Act 10/1995 is not a declaratory Act and, therefore, it has no retrospective operation. [para 17] [134-E] * Shyam Sunder and Others vs. Ram Kumar and Anoiher. (2001) 8 SCC 24 - followed. F Didar Singh vs. /shar Singh (2001) 8 SCC 52 ; Bhagwan Das (dead) by LRS. and Others vs. Chet Ram, 1971 (1) SCC G 12; and Rikhi Ram and Another vs. Ram Kumar and Others, (1975) 2 sec 318 - relied on. Ramj1/a/ vs. Ghisa Ram (1996) ·7 SCC 507 - sto~(d overruled in Shyam Sunders Case. H 124 SUPREME COURT REPORTS (2011] 11 S.C.R. A 1.4. In a suit for pre-emption, 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. In the case on hand, the amendment Act came into force with effect from B 17.05.1995 and the suit had been laid on 31.10.1992. 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 c in the absence of such right on the date of passing of the decree by the court of first instance, both the courts bel.ow have correctly appreciated the effect of the amendm~nt and the High Court also rightly dismissed the second appeal holding that the plaintiff had lost the 0 character of a co-owner during the pendency of the suit by virtue of the amendment Act. [para 17] [135-B-E] 1.5. In vie.w of the interpretation of the Constitution Bench in respect of substituted s.15 introduced by the Haryana Amendment Act, 1995 in the Parent Act i.e. the E Punjab Pre-e
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