Viney Mittal, J.
1. The vendees are the appellants before this Court who have lost concurrently in a suit for pre-emption filed by the plaintiff-respondent.
2. Plaintiff Himta Ram filed a suit for pre-emption on December 14, 1989 claiming a right of pre-emption with regard to land measuring 32 kanals which had been sold by Smt. Shakuntla Devi, widow of Bahadur Singh, to Krishan Lal and Bhagwan Singh through a registered sale deed dated December 15, 1988 for a consideration of Rs. 1,17,000/-. The plaintiff claimed that 20/32 shares had been sold in favour of defendant No. 1 Krishan Lal, whereas, 12/32 shares had been sold in favour of defendant No. 2 Bhagwan Singh. It was further claimed by the plaintiff that although the actual price was fixed at Rs. 80,000/- but the consideration had been shown as Rs. 1,17,000/-. The plaintiff claimed that he was a co-sharer alongwith Shakuntla Devi in the joint Khata and Khewat and, therefore, had a preferential right to purcahse the land. It was also claimed that the defendants were strangers and had no concern with the suit land and, therefore, the plaintiff had a superior right to purchase the same.
3. The suit was contested by the defendants. They took up various technical pleas. On merits of the controversy, it was claimed that the plaintiff was not a co-sharer of the suit land. It was further pleaded by the defendants that after purchase they had made improvements in the suit land and had raised construction also by raising a room. It was further pleaded that they had improved their status by purchasing some other land from Shakuntla Devi through a registered sale deed dated May 2, 1989 and having improved their status and having become co-sharers, the plaintiff had no preferential right to preempt the sale in favour of the defendants.
4. The suit filed by the plaintiff was decreed by the learned trial Court. It was held by the learned trial Court that the plaintiff was a co-sharer alongwith Shakuntla Devi and as such had a right of pre-emption. The sale was held to be for a consideration of Rs. 1,17,000/-. Although it was held that the sale deed Ex.D3 dated May 2, 1989 had been executed by Shakuntla Devi in favour of the defendants for a consideration of Rs. 1,21,312/-, but still even by the aforesaid improvement in their status by the defendant-vendees the right of the plaintiff could not be defeated by them. As a result of the aforesaid findings, the claim of the plaintiff was upheld.
5. The defendants took up the matter in appeal. The learned First Appellate Court reappraised the entire evidence and came to the identical conclusions as had been arrived at by the learned trial Court. The appeal of the defendants was also dismissed.
6. The vendees have now chosen to file the present Regular Second Appeal.
7. At the outset, it may be noticed that the present appeal was filed in the year 1995. A Full Bench of this Court in the case of Ghanpat v. Ram Devi, (1978)80 P.L.R. 1 (F.B.) had taken a view that in view of the local law (Punjab Courts Act), the amended provisions of Section 100 of the Code of Civil Procedure, as amended in 1976, were not applicable to the second appeals filed in this Court. Accordingly, no substantial questions of law were framed nor the aforesaid regular second appeal was admitted on any such substantial questions of law. However, the Hon'ble Supreme Court of India in the case of Kulwant Kaur and Ors. v. Gurdial Singh Mann (dead) by LRs and Ors. (2001-2)128 P.L.R. 492 (S.C.) has held that after the amendment of the Code of Civil Procedure in the year 1976, thereby amending Section 100, Section 41 of the Punjab Courts Act had become redundant and repugnant to the Central Act i.e. Code of Civil Procedure and, therefore, was to be ignored and, therefore, the second appeal shall only lie to this Court under Section 100 of the amended Code of Civil Procedure on a substantial question of law.
8. In these circumstances, during the course of hearing of the present Regular Second Appeal, following substantial questions of law have arisen for consideration:
(a) As to whether the defendants having improved their status vide sale deed dated May 2, 1989 i.e. prior to the filing of the present suit which was filed on December 14, 1989, the suit of the plaintiff could still be decreed?
(b) Whether the provisions of Section 28-A of the Punjab Pre-emption Act, 1913 are attracted in the present case to defeat the defence of the defendants?
(c) As to whether the findings recorded by the two Courts below can be termed as judicial perverse and are liable to be set aside?
9. I have heard Shri L.N. Verma, the learned Counsel appearing for the appellants and Shri Vaneet Soni, the learned Counsel appearing for the respondents and with their assistance have also gone through the record of the case.
10. Before adverting to the facts of the case, it may be relevant to reproduce the provisions of Section 28-A of the Punjab Pre-emption Act, 1913 (for short, 'the Act') as follows;
Section 28-A Postponement of decision of pre-emption suits in certain cases.
1. If, in any suit for pre-emption, any person bases a claim or plea on a right of pre-emption, derived from the ownership of agricultural land or their immovable property and the title to such land or property is liable to be defeated by the enforcement of a right of pre-emption with respect to it, the court shall not decide the claim or plea until the period of limitation for the enforcement of such right of pre-emption has expired and the suits for pre-emption, if any, instituted with respect to the land or property during the period have been finally decided.
2. If the ownership of agricultural land or other immovable property is lost by the enforcement of a right of pre-emption, the court shall disallow the claim or plea based upon the right of pre-emption derived therefrom.
11. The facts as have been noticed by the two Courts below clearly show that the sale which is sought to be pre-empted by the plaintiff is dated December 15, 1988, vide which Shakuntla had sold 32 kanals of land in favour of the defendant-appellants for a sale consideration of Rs. 1,17,000/-. It also emerges from the record that through a sale deed Ex.D3 Shakuntla had sold some other land on May 2, 1989 to the defendant-appellants for a consideration of Rs. 1,21,312/-, therefore, it is undisputed that the defendants had become co-sharers alongwith other co-sharers in the joint khata and khewat. Their rights in the joint khata and khewat have become equal to that of the plaintiff. It is also apparent that they had acquired the aforesaid status much prior to the filing of the present suit by the plaintiff-respondent. Therefore, the only question which arises for consideration is as to whether the aforesaid improvement in the status of defendants was liable to be ignored. Prior to the year 1944, there was some confusion as to the stage up to which the vendee-defendant could improve his status for defeating the claim of a pre-emptor. However, Vide Punjab Act 1 of 1944, an amendment was made in the Principal Act and Section 21-A was inserted to the following effect:
21-A 'any improvement, otherwise than through inheritance or succession, made in the status of a vendee defendant after the institution of a suit for pre-emption, shall not affect the right of pre-emption of plaintiff in such suit.
12. A perusal of the aforesaid provision would show that the legislature provided that any improvement, otherwise than through inheritance or succession made in the status of a vendee-defendant after the institution of a suit for pre-emption was liable to be ignored and could not affect the right of pre-emption claimed by the plaintiff. The said provision came to be interpreted by a Full Bench of this Court in the case of Garib Singh v. Harnam Singh and Ors. 1971 P.L.J. 579. It was held by the Full Bench as follows:
Prior to the introduction of Section 21-A by Amending Act 1 of 1944, there was an unhealthy race going on the part of vendee to defeat the right of pre-emption by making improvement in his position by voluntary and volitional efforts up to the date of getting decree. By introducing this new provision the scope of the race to improve his status on the part of the vendee was circumscribed up to the date of institution of the suit and not thereafter except where the improvement in the status of the vendee is not a result of his efforts or volition but because of inheritance or succession. Section 21-A was added to counter-act the view taken in I.L.R. 1942 Lah. 15 and I.L.R, 1942 Lah. 190 and 473, Because of the amendment of the Punjab Pre-emption Act by introduction of Section 21-A, the authorities in which it had been ruled that a vendee by voluntary acquisition can improve his position even after the institution of the suit are no longer good law. Section 21-A specifically prohibits such voluntary improvements after the suit, and it was enacted to nullify the effect of those authorities.
By introducing Section 21-A by the Amending Act 1 of 1944, the Legislature clearly intended to recognize no voluntary improvement in the status of a vendee after the institution of the suit, but only those resulting from inheritance or succession.
13. In view of the provisions of Section 21 -A and in view of interpretation thereof in Garib Singh's case (supra), it is clear that any improvement of the status of a vendee after the institution of the suit was liable to be ignored and the claim of a plaintiff-pre-emptor could not be defeated by any such improvement. In these circumstances, the natural corollary would be that if an improvement had been made in the status of vendee prior to the institution of the suit, then the vendee defendant would always be entitled to take protection of the aforesaid improvement. Ignoring the aforesaid improvement, even if made prior to the filing of the suit, would be contrary to the spirit of Section 21-A. A similar view was taken in the case of Mala Ram v. Subash Chander and Ors. 1989 P.L.J. 445.
14. The question which now arises is as to whether the provisions of Section 28-A of the Act come to the rescue of the plaintiff to claim that since the sale dated May 21, 1989 was subject matter of a pre-emption suit, therefore, improvement in status was liable to be ignored because of the aforesaid provisions. In my considered opinion, the answer has to be in the negative.
15. Provisions of Section 28-A have already been reproduced above. A bare reading thereof would show that the aforesaid provision is only attracted to non-suit the plaintiff/pre-emptor when he bases his claim on the strength of some sale deed in his favour to claim that he had acquired a right of co-sharer ship when the aforesaid sale deed itself is still liable to be pre-empted. The aforesaid provisions, by any stretch of imagination, cannot be interpreted to defeat the claim of a defendant who has improved his status by a subsequent sale deed and has acquired the right of co-sharer ship, similar to that of the plaintiff. Even if the subsequent sale deed is subject of any pre-emption suit, the rights of a defendant do not fall within the para-meters of Section 28-A of the Act and such the defence of improvement of status cannot be denied to him. As a matter of fact, the question of any improvement or otherwise of the status of the defendant-vendee has to be examined in the light of Section 21-A only and the provisions of Section 28-A of the Act are not attracted at all to the case.
16. Faced with the aforesaid difficulty, the learned Counsel for the plaintiff-respondent has relied upon a judgment in Smt. Maya Devi and Anr. v. Rameshwar (1992-1)101 P.L.R. 688. Oft the first impressions the said judgment seems to support the case of the plaintiff. As a matter of fact, the said judgment has been relied upon by both the Courts below. However, on a deeper consideration of the aforesaid authority, it is apparent that in Maya Devi's case (supra) the sale was sought to be pre-empted by the preemptor on the basis of his co-sharership. Prior to the date of filing of the suit, the vendee-defendant had acquired the right of co-sharer ship in the suit property through a subsequent sale. The subsequent sale in favour of vendee-defendants was also sought to be pre-empted by the pre-emptor by filing a separate suit. Both the said suits were heard together by the trial Court. The appeals arising out of the said litigation were also heard together by the Appellate Court. Two Regular Second Appeals arising out of the aforesaid two suits were also being heard together by the High Court. It was in these circumstances that this Court came to the conclusion that the new status acquired by the vendee after the first sale, which was sought to be pre-empted, would not improve the status of the vendee in any manner, since the subsequent sale itself was subject matter of a pre-emption suit, which was being decided together with the first suit. Because of the aforesaid peculiar facts, the improved status of the vendee was ignored and the claim of the pre-emptor was upheld.
17. However, the facts of the present case are totally distinguishable. It is apparent that the sale which was sought to be pre-empted by the pre-emptor Himta Ram is dated December 15, 1988. The vendees had improved their status vide a subsequent sale deed dated May 2, 1989. In these circumstances, the controversy in the present case is only with regard to the status of the vendees vis-a-vis the pre-emptor qua the sale deed dated December 15, 1988. It has to be examined as to whether the vendee-defendants had acquired the right of co-sharership and therefore, Himta Ram, plaintiff who was also a co-sharer could not be treated to have any preferential right to file the present suit in question. I am fully supported by the judgment rendered in Mala Ram's case (supra). In these circumstances, it has to be held that the vendee-defendants had improved their status through the subsequent sale deed dated May 2, 1989, when Shakuntla had sold some other land to them and the vendee-defendants had become co-sharers in the joint khata and khewat and had acquired the status similar to the plaintiffs. The ratio of the judgment in Garib Singh's case (supra) is also fully attracted to the present case and, therefore, the plaintiff-pre-emptor cannot claim any right of pre-emption against the defendant-vendee.
18. As a result of the aforesaid discussion, the substantial questions (a), (b) and (c) have to be answered in favour of the vendee-defendants (present appellants) and it is held that the findings recorded by the Courts below are judicially perverse and, therefore, the same are set aside.
19. Consequently, the present appeal is allowed. Judgments and decree of the Courts below are set aside and the suit filed by the plaintiff-respondent is dismissed.