Prabhu Dayal vs Bahadur and Others

S.P. Goyal, J. (16th July 1986)

Siria, respondent No. 6, sold agricultural land measuring 8 Kanals comprised of Killa No, 19 Rectangle No. 148 out of Khewat No. 558/531, Khatuni No. 706/666 for a mm of Rs. 5,500/- to respondents Nos. 1 to 5 vide registered sale deed dated June 1, 1974. The appellant filed this suit for possession of the said land by way of pre-emption alleging that he was the co-sharer in the Moti Patti Shamlat and as such had a superior right as opposed to the vendees The suit was dismissed by the learned trial Judge relying on a Full Bench decision of this Court in Lachhman Singh v. Pritam Chand (1970) 72 P. L. R. 341, wherein it was held that the purchaser of a share of specified kilia numbers in specified rectangles will not succeed in obtaining a decree by way of pre emption when a specified share in another rectangle is sold subsequently in which rectangle the original purchaser has no right because he does not become a co sharer in the other rectangles. Having failed in appeal as well, the plaintiff has come up in this second appeal.

Both the courts below have not noticed this fact, as is evident from Exhibit P-4, that appellant Prabhu Dyal also purchased the specific Khasra Numbers in Khatuni No. 706 of the said Khewat Number 558/531. According to the Full Bench decision in Lachhman Singh''s case (supra), Prabhu Dayal would not become a co sharer in the Khewat by purchasing specific khasra numbers. However, the ratio of this decision runs counter to the ratio of Full Bench decision in Bhartu v. Ram Sarup 1981 P. L. J. 204. Although the point involved in the two cases was slightly different but according to the ratio of the Full Bench, Prabhu Dayal would become Co-sharer in the Khewat even if he had purchased specific Khasra Numbers out of that Khewat. There is, therefore direct conflict between the ratio of the said two Full Bench decisions of this Court which needs to be resolved. This case, therefore, may be laid before my Lord the Chief Justice for referring the matter to a Larger Bench for settling the conflict between the two Full Bench decisions noticed above.

JUDGMENT OF LARGER BENCH

S.S. Sodhi, Act. C.J.

This reference to the Full Bench is rendered infructuous by the abatement of the appeal.

The appellant Prabhu Dayal died as far back as February 11, 1985, and it was only in June, 1992 that an application was filed praying that his legal representatives be brought on record,

Accompanying the application under Order XXII Rule 4 of the CPC was an application u/s 5 of the Limitation Act seeking condonation of the delay in the filing of the application for bringing on record the legal representatives of the deceased-appellant. The reason for the delay mentioned therein being that the applicants Jagdish Chander and Om Parkash was not present at the time of the death of their father, being posted at Patiala at that time. The only person with him was their mother Chalti Devi, who was an illiterate lady. Further, it is said that the appellant had never informed any member of their family about the filing of this appeal and that it was only on receipt of a letter from their counsel dated May 25, 992 that they learnt of this appeal ; and then discovered the death of their father.

Before proceeding further, it deserves note here that though the appeal stood abated, no application has been filed seeking the setting aside of the abatement All that is sought is condonation of the delay in filing the application for impleading the legal representatives of the deceased-appellant.

Turning to the reason and justification as put forth for the condonation of the delay, it will be seen to be wholly devoid of credibility. Even on the applicants'' own showing, their father Prabhu Dayal died in the village and their mother was with him at that time. It is not possible to accept that they learnt of the death of their father only when they contacted their counsel Mr. Chandra Singh, Advocate, of Chandigarh or that neither of them knew of the present appeal pending in this Court.

No occasion thus arises to warrant the setting aside of the abatement of the appeal. The appeal having abated, the reference clearly becomes infructuous and is accordingly disposed of as such.