| SooperKanoon Citation | sooperkanoon.com/505270 |
| Subject | Civil |
| Court | Madhya Pradesh High Court |
| Decided On | Aug-27-1992 |
| Case Number | S.A. No. 283 of 1974 |
| Judge | K.K. Verma, J. |
| Reported in | 1993(0)MPLJ168 |
| Acts | Qanoon Haqshafa (Riyasat Gwalior) Samvat, 1992 - Sections 3 |
| Appellant | Shri Krishan Das Agrawal |
| Respondent | Kanhaiyalal |
| Appellant Advocate | N.P. Mittal, Adv. |
| Respondent Advocate | M.M. Kaushik, Adv. |
| Disposition | Appeal dismissed |
| Cases Referred | Babulal v. Gowardhandas |
K.K. Verma, J.
1. This is plaintiff's appeal from the decree dated 9-4-1974 of the District Judge, Gwalior, in Civil Appeal No. 20-A/1967, by which the decree for pre-emption dated 31-7-1967 of the First Civil Judge, Gwalior, in C.S. No. 261 -A/1961 was reversed.
2. Qanoon Haqshafa (Riyasat Gwalior), Samvat 1992, which came into force on 5th July 1936, was repealed by the M. P. Legislature by the Act No. XIV of 1968, it contained no other provision whatsoever. It was published in the Government Gazette on 28-6-1968 when the vendee's appeal was pending before the District Judge.
3. The suit house is to the east of the appellant's house at Lashkar in the city of Gwalior. The owners of the suit house, Ramchandra and Ors., sold the suit house to the respondent under a sale-deed dated 5-12-1960 (Ex.P-1) registered on 10-12-1960. The sale-deed recited that the sale was in consideration of Rs. 8,000/-.
4. The suit, which was filed against the vendee on 5-12-1961, was based on the following averments:
The plaintiff's father Badri Prasad, who owned the suit house, sold it to one Nathmal alias Nathulal -- father of aforementioned Ramchandra -- by a registered sale-deed dated 24-4-1909, when Nathmal alias Nathulal executed a registered agreement dated 24-4-1909 (Ex. P.-2) in favour of Badri Prasad binding himself to make the first offer of sale of the suit house to his vendor Badri Prasad whenever the occasion arose.
5. The plaintiff alleged that his residential house was the dominant heritage whereas the suit house was the servient heritage in respect of several kinds of easements exercised for the beneficial enjoyment of the dominant heritage for more than 20 years.
6. The plaintiff averred that he had a right of pre-emption in respect of the suit house not only customary in origin, but also a statutory one in view of the averments in the previous paragraph.
7. The plaintiff averred that on sensing the intent of Ramchandra and others to deprive him of his right of pre-emption he had asserted his right in a public notice (Ex.P-3) by publishing it in the newspaper 'Hamari Aawaz' on 17-10-1960. Ignoring this, the respondent purchased the suit house from Ramchandra and others on 5-12-1960 for Rs. 5,000/- but inflated the figure to Rs. 8.000/- in the sale-deed.
8. The defendant denied the existence of the easements and the plaintiff's alleged right of pre-emption. He maintained that he paid eight thousand rupees as the purchase money to the vendors. He contended that the Qanoon Haqshafa (Riyasat Gwalior), Samvat 1992 had become unconstitutional.
9. The parties adduced evidence on all the issues. The learned trial Judge answered all the issues, in favour of the plaintiff and decreed the claim. The plaintiff deposited the purchase money in Court within the time-limit fixed in the judgment. The vendee appealed. The District Judge, Gwalior, stayed the execution of the decree on 28-10-1967.
10. The learned District Judge allowed the appeal on the following findings:
The repeal of the Qanoon Haqshafa (Riyasat Gwalior), Samvat 1992 ended the plaintiff's statutory claim to get a decree for pre-emption. The plaintiff could not fall back on custom for which there was no evidence. At all events, the customary right of pre-emption was extinguished on the coming into force of the Qanoon Haqshafa, Samvat 1992 and could not be revived on the repeal of the said law.
11. The learned Judge further held that the agreement of pre-emption offended against the rule of perpetuity, and the vendee being a bona fide purchaser for value without notice of the agreement, the agreement was enforceable on these two counts.
12. The learned District Judge declined to deal with the questions of fact and law about the existence of easementary rights which were held by the trial Court as approved.
13. In second appeal, the respondent-vendee has not filed any cross -objection.
14. The learned counsel for the parties argued at length on the effect of the repeal of the Qanoon Haqshafa (Riyasat Gwalior), Samvat 1992 during the pendency of the first appeal. The appellant's learned counsel conceded that once if it was held that the repeal had the effect of non-suiting the plaintiff, he would be out of Court.
15. In order to appreciate the arguments addressed by both sides, it will be necessary to touch upon the salient features of the Qanoon Haqshafa (Riyasat Gwalior), Samwant 1992. The aforementioned law came into force in the Gwalior State on 9th July 1936. The relevant portion of the preamble reads:
^^pwafd djhu eqLygr gS fd dkuwu gd'kQk] flok;vkjkth tjbZ nhxj tk;nkn xSj eudwyk ds eqrvfYyd] bdV~Bk fd;k tk;A**
16. Shri Harihar Niwas in his Qanoon Haqshafa (Riyasat Gwalior) has pointed out at page 12 that the law has in fact made certain amendments in the pre-existing law and, therefore, the Qanoon Haqshafa (Riyasat Gwalior), Samvat 1992 not only consolidated the law but amended it in several particulars. Section 3 defined the right of pre-emption as follows:
^^3- vke vgeke & gd'kQk ls eqjkn og gd gSftlesa t;sZ ls dksbZ 'k[l tk;nkn xSj eudwyk o rjthg nhxj v'k[kkl gkfly dj ldrkgS vkSj ;g gd fuLor ,slh tk;nkn xSj eudwyk ds flQZ clwjr c; ;k c; ckr iSnk gksrkgSA nQk gktk fdlh vnkyr dks bl vez ds djkj nsus es ekusuk gksxh fd dksbZ bUrdkytks ctkfgj c; ugha gS] gdhdr es c; gSA**
17. Sub-section (5) of Section 12 which is material for this appeal reads as follows:
^^12- vdlke v'k[kkl ftudh tk;nkn xSj eudwyk esagd'kQk gkfly gksxk & gd'kQk fuLcr tk;nkn xSj eudwyk ds v'k[kkl tSy dks o dsckn nhxj gkfly gksxkA
5 vxj c; ;k c;ckr fdlh ,slh tk;nkn dh gksftl ij gd vlk;'k gkfly gks rks ,slh tk;nkn ds ekfydku dks ftudks tk;nkn eqUrfdy'kqnk ij gd vlk;'k gkfly gks] vkSj vxj c; ;k c;ckr fdlh ,slh tk;nkn dh tksftlds ekfydku fdlh tk;nkn ij gd vlk;'k j[krs gks rks ml tk;nkn ds ekfydku dksftl ij tk;nkn eqUrfdy'kqnk ds ekfydku gd vlk;'k j[krs gksA**
18. Section 16 relating to the right of suit by a pre-emptor runs as follows:
^^16- gd ukfy'k dc iSnk gksrk gS & dksbZ 'k[l]tks gd'kQk dk eqLrgd gks] etkt gS fd c; ;k c;ckr dh rdehy ik ysus ij gd etdwjfuQkt esa ykus ds fy;s ukfy'k djsaA**
19. Section 21 runs as follows:
^^21- rkjh[k ftl ij tjs leu nkf[ky u gksus ijukfy'k fMlfel gks tk;sxh & tcfd vnkyr gd'kQk dh ukfy'k esa fMh lkfnj djsvkSj tjs leu vnkyr esa nkf[ky u dj fn;k x;k gks rks vnkyr fMh esa ,d rkjh[keqdjZj dj nsxh tks rkjh[k fMh ls ,d eghus ls de ;k rhu eghus ls T;knk fe;kn dhu gksxh] ftlls ifgys tjs leu nkf[ky dj fn;k tkosxk] vkSj ml lwjr esa tcfd vnkyrvihy ls fMh dk bYrok fd;k tk;s rks vnkyr lkfnj dqfuUnk fMh] gqDe bYrok csvljgksrs gks] oSlh rkjh[k eqdjZj dj nsxhA
2 vnkyr fMh esa ;g Hkh djkj nsxh fd ^^tjs leu e; [kpkZ vxj dqN gks rkjh[k eqdjZjk rgrh nQk 1 ls ifgys nkf[ky ugksus ij ukfy'k e; [kpkZ fMlfel gks tk;sxh vkSj ml rkSj ij tjs leu nkf[ky gksusdh lwjr esaa fMhnkj tk;nkn e'kQwvk dk dCtk gkfly djsxk vkSj ,slk dCtk mlrkjh[k ls le>k tk;sxk ftl rkjh[k dks tjs leu nkf[ky gqvk gks vkSj en;wu dksykfte gksxk fd gLc vgdke dkuwu ukfQtqy oDr nLrkost rgjhj djs vkSj mldh jftLVhdjk nsA**
20. In Chapter 5 Section 23 occurs. It has been referred to repeatedly during the arguments before me. It runs as follows:
23- vxj flnwj fMh ls ifgys ;k mlds ckn 'kQhdk gd tk;y gks tk; rks mldk vlj & dksbZ fMh 'kQk dh fdlh 'k[l ds gd esalkfnj u gksxh tc rd fd fMh lkfnj djus ds oDr mldk gd 'kQk dk;e u gks] ysfdutcfd vnkyr bCrnkbZ ;k vnkyr vihy ls eqn~nbZ ds gd esa 'kQk dh fMh lkfnj gkspqdh gks rks] cotg blds fd flnwj fMh dh rkjh[k ds ckn eqn~nbZ us tk;nkneqUrfdy dj nh gS ;k mldk gd eqrvfYyd tk;nkn tk;y gks x;k gS] eqn~nbZ ds gd'kQkij dksbZ vlj ugha iM+sxkA**
21. Coming to the M. P Agra-Kraya-Vidhi Nirsan Adhiniyam, 1968 (hereinafter referred to as the Repealing Act), the preamble stated simply that it was an Act to repeal the Qanoon Haqshafa (Riyasat Gwalior), Samvat 1992. the Bhopal Pre-emption Act, 1934 (III of 1934) and the Rewa State Pre-emption Act, 1946. It has only two sections. The first section recites the short title of the Repealing Act. Section 2 reads as follows:
'The Qanoon Haqshafa, Gwalior Samvat, 1992,
The Bhopal Pre-emption Act, 1934 (III of 1934) and
The Rewa State Pre-emption Act, 1946 are hereby repealed.'
22. The Repealing Act, in the main, was a codifying enactment. In Gokul Mandar v. Pudmannund Singh, ILR 29 Calcutta 707 (P.C.), it was pointed out that the essence of a codifying statute 'to be exhaustive in the matters in respect of which it declares the law and it is not the province of a Judge to disregard or go outside the letter of the enactment according to its construction'.
23. Hence, the rights and liabilities of the parties had to be determined in accordance with the provisions of the Pre-emption Act, Gwalior and not with reference to the pre-existing rules of customary law of pre-emption prevalent in the State of Gwalior before 9-7-1936. The averments at sub-paragraph (2) of para 4 of the plaint read with the particulars thereof, annexed to the plaint, put forth a case purportedly within the ambit of Sub-section (5) of Section 12. The suit could be decreed on fulfilment of the requirements of Section 12 (5) and not the fact that there was any agreement between Ramchandra's father and plaintiff's father in 1909 in respect of the right of pre-emption claimed in this case. Thus, the fact of the aforementioned agreement did not constitute any ingredient in the cause of action for the suit. Hence it is unnecessary to refer to the case law about the customary law of pre-emption into the operation in the Gwalior State before 9-7-1936 and also about the effectiveness and enforceability or otherwise, of the agreement between Nathmal and Badri Prasad in the year 1909.
24. Now comes the question whether the conferral on the plaintiff of the right of pre-emption in terms of Section 16 read with Section s 21 and 23 of the Qanoon Haqshafa (Riyasat Gwalior) in the trial Court's decree dated 31-7-1967 survived the repealing of Qanoon Haqshafa (Riyasat Gwalior) on the passing of the repealing statute (No. XIV of 1968) which came into force on 28-6-1968.
25. It is common ground that Section 10 (c) of the M. P. General Clauses Act, 1957 comes into play. It runs as follows:
'The effect of repeal -- Where any Madhya Pradesh Act repeals any enactment then, unless a different intention appears, the repeal shall not -
(c) affect any right, privilege, obligation or liability, acquired accrued or incurred under any enactment so repealed.'
26. The learned District Judge and the respondent's learned counsel have relied on Nirmala Devi v. Ku. Renuka, 1972 MPLJ 512 = 1972 JLJ 453. There the trial Court dismissed four separate suits for pre-emption, filed in the year of 1966 in respect of the different parts of a house situate in Gwalior, on the ground of the Qanoon Haqshafa (Riyasat Gwalior), Samvat 1992 had been repealed by the M. P. Agra-Kraya-Vidhi Nirsan Adhiniyam, 1968 (Act No. 14/68). In the plaintiff's appeal to the High Court, the Division Bench affirmed the trial Court's decree holding that the right of pre-emption, a remedial right was not saved by the provision of Section 10 of the M. P. General Clauses Act.
27. The appellant's learned counsel admits the binding effect of the ruling but contended that in the present case the right became one acquired or accrued on the passing of the decree by the trial Court in the plaintiff's favour. He has based his submissions on the provisions of Section 23 of the repealed Act and contends that he is supported by the following observations in Nirmala Devi v. Ku. Renuka, 1972 MPLJ 512 = 1972 JLJ 453 (para 15):
'As pointed out above, the right of pre-emption is remedial right or in other words a right to take advantage of an enactment for acquiring a right to land, or other property. The right cannot be said to have been acquired or accrued until a decree is passed and, therefore, is not saved by provisions of Section 10 of the M. P. General Clauses Act.'
28. This takes me to Section 23 which occurs in Chapter 5 ^^vgdke eqrQfjZd** of the repealed Act. It runs as follows:
^^dksbZ fMh 'kQk dh fdlh 'k[l ds gd esa lkfnju gksxh tc rd fd fMh lkfnj djus ds oDr mldk gd 'kQk dk;e u gks ysfdu tcfdvnkyr bCrnkbZ ;k vnkyr vihy ls eqn~nbZ ls gd esa 'kQk dh fMh lkfnj gks pqdhgks rks cctg blds fd flnwj fMh dh rkjh[k ds ckn eqn~nbZ us tk;nkn eqUrfdy djnh gS ;k mldk gd eqrvfYyd tk;nkn tk;y gks x;k gS] eqn~nbZ ds gd'kQk ij dksbZ vljugha iM+sxkA** (emphasis supplied)
29. In effect, the submission is that the passing of the trial Court's decree in the plaintiff's favour converted an inchoate and a remedial right into a vested right and this transmitted right became sheathed into the protective shell of Clause (c) of Section 10 of the M. P. General Clauses Act, 1957.
30. The portions of Section 23 relied on by the appellant' s learned counsel were not touched upon in Nirmala Devi v. Ku. Renuka, 1972 MPLJ 512 = 1972 JLJ 453. The learned counsel for the parties did not bring to my notice any other reported ruling of this Court on the construction of the second part of Section 23 of the repealed Act.
31. Now, in a string of rulings, to wit, Kristnama Chari v. Manga Mammal (1902) 26 Madras 91 (F.B.), Lachmeshwar v. Keshwarlal AIR 1941 FC5, Ramswaroop v. Munshi, AIR 1963 SC 553 and Amarjeet Kaur v. Preetam Singh, AIR 1974 SC 2068, it has been held that the hearing in appeal is under the processual law of this country in the nature of a rehearing and on this theory the Court of appeal is entitled to take into account even facts and events which have come into existence after the decree appealed against had been passed.
32. Amarjeet Kaur v. Preetam Singh, AIR 1974 SC 2068 was a case where the trial Court had decreed a suit for pre-emption. The trial Court's decree was affirmed by the first appellate Court. The vendee filed a second appeal before the High Court of Punjab and Haryana. During the pendency of the second appeal, the Punjab Pre-emption (Repealed Act, 1973) came into existence. Section 3 of the Repealing Act said that on and from the date of institution of the Punjab Pre-emption (Repealed) Act, 1973, no Court shall pass a decree in any suit for pre-emption. In view of this Repealing Act, the High Court allowed the vendee's appeal and dismissed the suit for pre-emption. The vendee came in an appeal to the Supreme Court. Their Lordships of the Supreme Court, approving of the law laid down in Lachmeshwar v. Keshwar Lal, AIR 1941 FC 5 and Kristnama Chari v. Manmammal, ILR 26 Madras 91 upheld the High Court's judgment, observing (at paragraph 5) as follows:
'.... as an appeal is a rehearing, it would follow that if the High Courts were to dismiss the appeal, it would be passing a decree in a suit for pre-emption. Therefore, the only course open to the High Court was to allow the appeal and that is what the High Court has done'.
33. We have to bear in mind that an appeal is a rehearing and that when an appeal is filed the finality which attached to the decree of the trial Court disappears and the entire matter becomes to res sub judice. See, Ramswaroop v. Munshi, AIR 1963 SC 553 (Para 28).
34. Construing the provisions of Section 23 of the repealed Act in the context of the law laid down in the aforementioned rulings, the appellant's submissions become unacceptable. The result is that in the instant case of the filing of Court's decree lost all finality and the entire matter was reopened in the appeal. Hence, law laid down in Nirmala Devi v. Ku. Renuka, 1972 MPLJ 512 = 1972 ILJ 453 governs this case also. There, it was pointed out at paragraph 8 as follows:
'It is, therefore, clear that no decree can be passed where the right of pre-emption does not subsist on the date of decree for any reason whatsoever'.
It was also pointed out at paragraph 16 that the first part of Section 23 of the Pre-emption Act clearly lays down that no decree shall be passed in favour of the plaintiff unless the right of pre-emptor subsists on the date of the decree.
35. I, therefore, hold that with the repeal of the Qanoon Haqshafa (Riyasat Gwalior), Samvat 1992, the plaintiff was liable to be non-suited on that account.
36. The respondent's learned counsel has also pressed into service Babulal v. Gowardhandas, AIR 1956 MB 1, decided on 18-10-1955 which was a decision given by a Full Bench on a Reference made in five second appeals and one civil revision. There it was held that Sub-section (5) of Section 12 of the Gwalior Pre-emption Act (1992) infringed the fundamental rights of the vendor and the vendee under Article 19(1)(f) and that the restrictions imposed by Sub-sections (1) and (5) of Section 12 were reasonable and saved by Article 19(5) and that the entire Section 12 of the Act was repugnant to Article 14, and was as such void and ineffectual from 26-1 -1950.
37. First, the defendant did not take any plea in the written statement in line with the aforementioned decision. Secondly, the decision could not conceivably be used as one in support of a plea of res Judicata. What is more, such a question was also not raised in Nirmala Devi v. Ku. Renuka, 1972 MPLJ 512 = 1972 JLJ 453. What is more, it is the decision of Nirmala Devi's case, 1972 MPLJ 512 = 1972 JLJ 453which is binding on this Court. Above all, it was held by the Supreme Court in Barsi Municipality v. Lokmanya Mills, AIR 1973 SC 1021 (Para 12):
''It is a wise tradition with Courts not to decide a constitutional question if the case can be disposed of on other grounds'.
Hence, in view of the finding recorded at para 34 (supra) it is not at all necessary to consider the effect of the decision in Babulal v. Gowardhandas, AIR 1956 MB 1 .
38. In the result, the first appellate Court's decree is affirmed and the present appeal is dismissed with costs. Counsel's fee Rs. 350/- if certified.
A decree be drawn up in above terms.