Right of Pre-emption in Haryana: RSA Restores Decree in Favour of Co-Sharer After 1995 Amendment in HighCourt RSA-Suit for Possession.

High Court Clarifies That a Pre-emption Right Existing on the Date of Trial Court Decree Is Not Defeated by a Later Statutory Amendment During Appeal.

The Punjab and Haryana High Court, in a recent Regular Second Appeal (RSA) concerning a suit for possession by way of pre-emption, has examined the effect of the Haryana Amendment Act No. 10 of 1995, which abolished the superior right of pre-emption of a co-sharer in agricultural land. The Court held that where the right of pre-emption existed and the trial court had already passed a decree in favour of the pre-emptor before the 1995 amendment came into force, the subsequent amendment would not extinguish that right during the pendency of the appeal.

A Regular Second Appeal (RSA) relating to a suit for possession in Indian High Courts (such as the Punjab and Haryana High Court) is governed by Section 100 of the Code of Civil Procedure (CPC), which requires the presence of a substantial question of law rather than just a re-appreciation of facts.

Principles in HighCourt RSA-Suit for Possession

Substantial Question of Law: The High Court will not interfere with concurrent findings of fact by the trial court and first appellate court unless a clear substantial question of law arises. [1, 2, 3, 4]

Burden of Proof on Title: In a suit for possession based on title, the plaintiff must establish a valid title and right to possess. [1]

Co-sharer & Joint Property: A co-sharer cannot convey exclusive possession of a specific portion of joint property without a legal partition. A mere recital of specific Khasra numbers in a sale deed does not alter an undivided share

Adverse Possession Pleas:
- - A plea of title and a plea of adverse possession are mutually destructive (one cannot claim to own the land and simultaneously claim adverse possession against the owner).
  - If possession is permissive (such as tenant, licensee, or family arrangement), adverse possession does not run against the true owner.
  - Under Article 65 of the Limitation Act, a suit for possession based on title must be filed within 12 years from the date the defendant’s possession becomes adverse and known to the plaintiff. [1, 2, 3]

Mandatory Injunction vs. Possession: If title and possession are both disputed, a standalone suit for mandatory injunction is not maintainable; the plaintiff must seek a declaration of title and recovery of possession.

Background of the Dispute

The plaintiff had instituted a suit seeking possession by way of pre-emption concerning 6 kanals 16 marlas of agricultural land.

The property had been sold by one co-sharer to another purchaser through a registered sale deed dated 16 November 1992 for a consideration of ₹1,00,000/-.

The plaintiff claimed a superior right of pre-emption on the basis of his status as a co-sharer in the joint agricultural land.

The trial court examined the revenue record, including the Jamabandi and mutation, and found that the land was joint and that the plaintiff possessed the requisite status as a co-sharer.

The suit for possession by way of pre-emption was consequently decreed in favour of the plaintiff.

What Changed During the Appeal?

The purchaser challenged the trial court decree before the First Appellate Court.

While that appeal was pending, the State of Haryana amended Section 15 of the Punjab Pre-emption Act, 1913 through the Haryana Amendment Act No. 10 of 1995, with effect from 7 July 1995.

The amendment removed the superior right of pre-emption available to a co-sharer in respect of agricultural land, retaining the relevant statutory right only in favour of a tenant.

The First Appellate Court took the view that an appeal is a continuation of the original suit.

It therefore applied the amended law as it stood on the date of deciding the appeal and dismissed the pre-emption suit.

This resulted in the Regular Second Appeal before the High Court.

The Central Legal Question

The principal question before the High Court was:

Does the 1995 Haryana amendment abolishing the co-sharer’s right of pre-emption operate retrospectively so as to defeat a decree already passed by the trial court before the amendment?

The High Court answered this question by relying upon the Constitution Bench judgment of the Supreme Court in Shyam Sunder v. Ram Kumar.

Constitution Bench Ruling: Amendment Was Prospective

The Supreme Court in Shyam Sunder v. Ram Kumar had specifically considered the Haryana Amendment Act No. 10 of 1995.

The Constitution Bench held that the amendment was prospective and not retrospective.

It further held that the amendment did not affect rights of parties which had already crystallised in pending litigation before the amendment came into force.

The High Court reproduced the principle that the appellate court was not required to give effect to the substituted Section 15 where the relevant right had already accrued before the amendment.

When Must the Right of Pre-emption Exist?

The judgment reiterates an important proposition concerning the timing of the pre-emptor’s right.

Relying upon Didar Singh v. Ishar Singh, the Court noted that the pre-emptor must establish that the right to pre-empt existed up to the date of the decree of the trial court.

If that right is subsequently lost because of an event beyond the pre-emptor’s control, including statutory intervention during the pendency of the appeal, such subsequent change does not necessarily invalidate the decree already passed.

The Supreme Court’s Constitution Bench in Shyam Sunder had specifically rejected the contrary approach taken earlier in Ramjilal v. Ghisa Ram.

Application to the Present Case

In the present matter:

The sale took place in 1992.
The trial court decreed the pre-emption suit on 22 October 1994.
The Haryana amendment came into force only on 7 July 1995.
The amendment therefore came after the decree of the trial court.

Consequently, the High Court held that the plaintiff’s right of pre-emption had already crystallised before the amendment.

The later amendment could not retrospectively take away that right during the pending appeal.

What About the Supreme Court’s Later Decision in Punyadeo Sharma?

An argument was raised that the Supreme Court had subsequently described the right of pre-emption in strong terms and had treated it as an archaic or outdated concept.

The High Court distinguished that decision.

It explained that Punyadeo Sharma v. Kamla Devi concerned the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, as amended by Bihar legislation.

The Bihar amendment expressly provided for the abatement of pending proceedings and therefore operated differently from the Haryana amendment considered in Shyam Sunder.

Thus, the High Court held that Punyadeo Sharma did not alter the legal position applicable to the Haryana amendment.

Final Decision of the High Court

The High Court set aside the judgment and decree of the First Appellate Court dated 5 April 1996.

The original trial court decree was restored.

Consequently, the plaintiff was held entitled to possession by way of pre-emption, subject to compliance with the statutory requirement of depositing or paying the entire sale consideration in accordance with law.

The Court specifically directed that, if the consideration had not already been deposited, the appellant was required to deposit it in accordance with the original decree.

Also Read-Adverse Possession RSA in Chandigarh HighCourt

Key Legal Takeaways

1. Rights crystallised before amendment receive protection

Where a statutory right had already accrued and a decree had been passed before a later amendment, the amendment cannot automatically be applied retrospectively.

2. The trial court decree is critical

For the Haryana co-sharer’s pre-emption right considered in this judgment, the relevant point was whether the right existed up to the date of the trial court decree.

3. Appeal does not necessarily expose an accrued pre-emption right to later extinguishment

Although an appeal is ordinarily regarded as a continuation of the proceedings, the Constitution Bench in Shyam Sunder specifically held that the 1995 Haryana amendment did not retrospectively affect rights already adjudicated by the trial court.

4. Negative equality cannot be used to claim an unlawful benefit

The present judgment is concerned principally with the temporal effect of the Haryana amendment; the Court’s conclusion rests on the specific statutory framework and binding Supreme Court precedent concerning that amendment.

5. Pre-emption decree remains subject to statutory payment requirements

Even after restoration of the decree, the pre-emptor must comply with the requirement of depositing/payment of the entire sale consideration as directed by the decree.

Also Read-Will Dispute in Chandigarh HighCourt RSA (Appeal)

Conclusion

The judgment provides an important illustration of the principle that a later amendment cannot ordinarily be used to retrospectively destroy a right that had already crystallised and had resulted in a decree before the amendment came into force, particularly where the Supreme Court has already determined the temporal operation of that amendment.

In the present case, the co-sharer’s right of pre-emption existed when the trial court passed its decree in 1994. The subsequent Haryana amendment of 1995 therefore did not defeat that decree during the pendency of the appeal.

The High Court consequently allowed the Regular Second Appeal, restored the trial court’s decree and recognised the entitlement to possession by way of pre-emption subject to compliance with the statutory deposit/payment requirement.

Legal Disclaimer: This article is intended solely for general educational and informational purposes and does not constitute legal advice or solicitation. The law relating to pre-emption is highly dependent upon the applicable statute, date of transaction, nature of property, status of the parties, amendments in force and the procedural stage of the litigation.

By Satish Mishra, Advocate (99888-17966)