# MULA AND OTHERS v. GODHU AND OTHERS

- **Citation:** [1970] 2 S.C.R. 129
- **Court:** Supreme Court of India
- **Decided:** 1969-08-28
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mula-and-others-v-godhu-and-others-4754
- **Pages:** 7

## Headnote

A
B
c
D
E
r
G
H
MULA AND OTHERS
v.
GODHU AND OTHERS
August 28, 1969
129
[J, M. SHELAT, C. A. VAIDIALINGAM AND I. D. DUA, JI.)
Punjab Pre-emption Act, 1931 s. 31-Amendment by Punjab Act JO
of 1960-Amendment retrospective
in
operation-Pre..emptors'
rights
determined by trial court decree---Thereafter amendment taking away property rights on which rights of pre-emption were based--'Jf pre-emp!ors'
right of appeal affected.
After the land in suit was sold in June, 1957, for an ostensible sum of
Rs. 1,35,000/-, the appellants and respondents l to 3 instituted two separate suits for pre·emp~ions in which the sale price inserted in the sale
deed was also questioned. The two suits were consolidated and the plain-
~iffs in each suit were ioined as defendants in the other suit under section
l8 of Punjab Pre-emption Act, 1913.
The vendees thereafter admitted
ihe rights of pre-emptors in both the suits conceding that a decree may be
passed in their favour.
The appellants accepted the sale
price of Rs.
1,35,000 on or before 30th July 1!>58 and although respondents l to 3
wanted this issue to be decided on the merits, the trial court passed a
decree in both the suits granting respondents l to 3 the right to preemption in the, first instance on payment of Rs. 1,35,000 and, on their
failur°'- to so pay, holding the appellants entitled to exercise the right to
pre-emption on paym~nt of the said amount on or before 30th October
1958.
In an appeal to the High Court, respondents 1 to 3 challenged
the
correctness of the amount of the deposit to be made. Allowing the appeal,
the High Court reduced the amount of deposit to Rs. 1,05,800/-and directed
re1pondents I to 3 to deposit the amount within three months.
In an appeal by the appellants tv this Court aga;nst the decision of
the High Court, a preliminary objection was taken challenging the appellants' right to ap~eal; it was contended that the appellants had based their
right to pre-emption in their suit on the ground of their bein~ proprietors
of the village where the land was situated. They were deprived of that
rijht by the amendment of section 31 of the Punia_b Pre·e!"~tion Act ,bY
Punjab Act 10 of 1960 which amendment was retrospe.cl!ve 1.n its op7rat1on
and prohibited the Courts from passing any decree mconststent with the
amended Act.
On the other hand it was contended
inter alia
for the appellants
that they had
already secured a decree
in their,
favou~
by
the
trial court which had become final and with the terms of. which they had
complied; in the present app
1eal they were merely seeking mod1ficat!on
f the decree of the High Court in favour of respondents l to 3 by getting
~he amount of pre-emption money. e:iha~ced to Rs. 1.'35,000/- without
claiming any rights of pre-emPtion 1n their own favo~r, furthermore, .the
only appeal preferred by respondent' 1. to 3 to the High Court ~a,s from
the decree in their own suit and for this reason also t~e de:ee in f1v~rr·
of the appellants bY the trial court had become conclusive an unassa1 a e . . ,
130
SUPREME COURT REPORTS
(1970]2 S.C.R.
HELD
Upholding the prelimnary objection,
Ill was 11ot open to this Court to PflSS a decree of pr~-eniption in favour
of the appellants who were deprived' by the Amendment Act of I 960 of
their right to secure such a decree. [133 C-DJ
The contention that the decree in the appellants' suit had become final
and the High Court's order was only .in relation to the suit of respondents
1 to 3 ignored the scheme of s. 28 of the Act read with 0.20, r. 14, C.P.C.
which does not postulate decrees of pre-emption in favour of rival preemptors on payment of different amounts of purchase money in respect
of the same sale.
Such a cour-e may lead to c-Jnfiicting decisions on the.
question of value of the property sought to be pre-empted for the purposes
of a p;e-ernption suit.
Besides, the appellants' right to pre-emp_t the sale
under the unamended law was admittedly inferior to that of respondents
I to 3 and the appellants could

## Text

A
B
c
D
E
r
G
H
MULA AND OTHERS
v.
GODHU AND OTHERS
August 28, 1969
129
[J, M. SHELAT, C. A. VAIDIALINGAM AND I. D. DUA, JI.)
Punjab Pre-emption Act, 1931 s. 31-Amendment by Punjab Act JO
of 1960-Amendment retrospective
in
operation-Pre..emptors'
rights
determined by trial court decree---Thereafter amendment taking away property rights on which rights of pre-emption were based--'Jf pre-emp!ors'
right of appeal affected.
After the land in suit was sold in June, 1957, for an ostensible sum of
Rs. 1,35,000/-, the appellants and respondents l to 3 instituted two separate suits for pre·emp~ions in which the sale price inserted in the sale
deed was also questioned. The two suits were consolidated and the plain-
~iffs in each suit were ioined as defendants in the other suit under section
l8 of Punjab Pre-emption Act, 1913.
The vendees thereafter admitted
ihe rights of pre-emptors in both the suits conceding that a decree may be
passed in their favour.
The appellants accepted the sale
price of Rs.
1,35,000 on or before 30th July 1!>58 and although respondents l to 3
wanted this issue to be decided on the merits, the trial court passed a
decree in both the suits granting respondents l to 3 the right to preemption in the, first instance on payment of Rs. 1,35,000 and, on their
failur°'- to so pay, holding the appellants entitled to exercise the right to
pre-emption on paym~nt of the said amount on or before 30th October
1958.
In an appeal to the High Court, respondents 1 to 3 challenged
the
correctness of the amount of the deposit to be made. Allowing the appeal,
the High Court reduced the amount of deposit to Rs. 1,05,800/-and directed
re1pondents I to 3 to deposit the amount within three months.
In an appeal by the appellants tv this Court aga;nst the decision of
the High Court, a preliminary objection was taken challenging the appellants' right to ap~eal; it was contended that the appellants had based their
right to pre-emption in their suit on the ground of their bein~ proprietors
of the village where the land was situated. They were deprived of that
rijht by the amendment of section 31 of the Punia_b Pre·e!"~tion Act ,bY
Punjab Act 10 of 1960 which amendment was retrospe.cl!ve 1.n its op7rat1on
and prohibited the Courts from passing any decree mconststent with the
amended Act.
On the other hand it was contended
inter alia
for the appellants
that they had
already secured a decree
in their,
favou~
by
the
trial court which had become final and with the terms of. which they had
complied; in the present app
1eal they were merely seeking mod1ficat!on
f the decree of the High Court in favour of respondents l to 3 by getting
~he amount of pre-emption money. e:iha~ced to Rs. 1.'35,000/- without
claiming any rights of pre-emPtion 1n their own favo~r, furthermore, .the
only appeal preferred by respondent' 1. to 3 to the High Court ~a,s from
the decree in their own suit and for this reason also t~e de:ee in f1v~rr·
of the appellants bY the trial court had become conclusive an unassa1 a e . . ,
130
SUPREME COURT REPORTS
(1970]2 S.C.R.
HELD
Upholding the prelimnary objection,
Ill was 11ot open to this Court to PflSS a decree of pr~-eniption in favour
of the appellants who were deprived' by the Amendment Act of I 960 of
their right to secure such a decree. [133 C-DJ
The contention that the decree in the appellants' suit had become final
and the High Court's order was only .in relation to the suit of respondents
1 to 3 ignored the scheme of s. 28 of the Act read with 0.20, r. 14, C.P.C.
which does not postulate decrees of pre-emption in favour of rival preemptors on payment of different amounts of purchase money in respect
of the same sale.
Such a cour-e may lead to c-Jnfiicting decisions on the.
question of value of the property sought to be pre-empted for the purposes
of a p;e-ernption suit.
Besides, the appellants' right to pre-emp_t the sale
under the unamended law was admittedly inferior to that of respondents
I to 3 and the appellants could only be held entitled to exercise their right
after the failure of those re<>pondents to comply with the terms of (he
decreo in their favour. [133 E-G]
, Ram Swarup v. Munshi and Others, [1963] 3 S.C.R. 858; referred to.
C;;·1L APPELLATE JURISDICTION: Civil Appeal No. 1156 of
1967.
Appeal from the judgment and decree dated January 6, 1967
of the Punjab and Haryana High Court in Civil Regula_r First
Appeal No. 152 of 1958.
Brij Bans Kishore, Mahabir Prasad Jain and J. P. Gupta, for
the appellants.
A
B
c
D
V. C. Mahajan and M. S. Gupta, for respondent Nos.
1
E
and 2.
The Judgment of the Court was delivered by
Dua, J. This appeal on certificate has been preferred by one
set of pre-emptors (plaintiffs in suit No. 556 of 1958) against the
judgment and decree of the High Court of Punjab and Haryana
allowing ihe rival plaintiffs-pre-emptors' appeal by reducing the
pre-emption money and passing a decree of pre-emp:ion on payment of Rs. 1,05,800/- instead of Rs. L35,000/- as directed by
the trial Court.
On behalf of the rival pre-emptors (plaintiffs in suit No. 558
of 1958) who are arrayed as respondents 1 to 3 in this Court, a
prdiminary objection was taken to the competency of the present
appeal.
The appellants' right to appeal was challenged on the
ground that the amendment of the Punjab Pre-emption Act (hereinafter called the Act) by the Punjab Act X of 1960 had deprived
them of their right of pre-emption with retrospective effect. The
appellants had based their right of pre-emption in their suit on
the. ground of their being proprietors of the village.
They were
deprived of this right by the Amending Act of 1960 and s. 31 of
F
G
H
A
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G
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MULA I'. GODHU (Du,., J.)
131
the Act as amended made the amendment retrospective in its operation by prohibiting the Courts from passing decrees inconsistent
with the Amended Act. The right of respondents l to 3 who had
sued as sons of the vendors remained undisturbed by the amendment.
It was on this basis that the preliminary objection was
pressed before us.
The facts relevant for the pres.,,at appeal may now briefly be
stated.
The land in suit was sold by a registered sale deed on
June 18, 1957 by Kashi. Harchand and Bhagoo (respondents 4
to 6 in this Court) to respondents 7 to 18 for an ostensible consideration of Rs. 1,35,000 -.
The appellants and respondents 1 to
3 instituted two separate suits for pre-emption in respect of this
sale. In both the suits the sale price as inserted in the sale deed
was questioned. The two suits were consolidated and the plaintiffs in each suit were joined as defendants in the other suit as
contemplated by s. 28 of the Act. It appears that on April 28,
1958, a statement was made on behalf of the vendees admitting
the right of the pre-emptors in both the suits and conceding that a
decree be passed in favour of respondents 1 to 3 in the first instance and on their failure to pay the amount, the appellants be
held entitled to a decree on payment of Rs. 1,35,000/-. Apparently all other objections raised by the vendees to the right of the
pre-emptors were dropped. Counsel for the appellants also made
a statement expressing
his willingness to pay a
sum of Rs.
1,35,000/-. Counsel for the respondents 1 to 3 however did not
accept the amount of consideration as entered in the sale deed
and wanted the issue in regard to the pre-emption money to be
decided on the merits. The trial Court by its judgment and decree
dated June 30, 1958 granted to the plaintiffs in both the suits a
decree in the following terms :
"It is ordered that a decree is granted to the plaintiffs for possession of land in suit by pre-emption on payment of Rs. 1 ,35,000:- on the condition that the plaintiffs deposit this amount in the court for payment to the
vendees-defendants within one month on or before 30th
July, 1958, otherwise this suit shall stand dismissed.
In case of default by the plaintiffs Godhu etc. Moola
and other rival pre-emptors. who are plaintiffs in suit
No. 556 of 1958 shall be entitled to dep0sit the above
amount as pre-emption money on or befo1e 30th October, 1958, and get the possession of the land in suit."
This decree was apparently framed in the light of the provisions
of s. 28 of the Act and Order 20, r. 14, C. P. C.
Section 28
which provides for concurrent hearing of two or more suits for
pre-.,mpting the same sale lays down that each decree shall state
the order in whieh each claimant is entitl.ed to exercise his right
of pre-emption.
Ord.~r 20 r. 14( l) (a) lays down that the decree
. 132
SUPREME COURT REPORTS
[1970] 2 S.CY
in a pre-emption suit shall, when purchase money has not been
paid in the Court, specify a day on or before which the same shall
be paid and Order 20 r. 14(2)(b) provides inter alia that in so
far as the claims decreed are different in degree, the claim of the
inferior pre.-emptor shall not take effect unless
and until the
superior pre-emptor has failed to comply with the provisions of
sub-rule I.
Respondents 1 to 3, feeling dissatisfied with the decision on
the amounl of deposit to be made, preferred an appeal to the
Punjab High Court. On January 6, 1967 the High Court allowed the appeal and reduced the amount of deposit to Rs. 1,05,800/-.
While framing the decree the High Court allowed the plaintiffspre-emptors a period of three months from January 6, 1967, for
depositing in Court the amount of Rs. 1,05,800/- failing which
their suit was directed to stand dismissed. Nothing was stated in
the decree as regards the claim of the appellants. Attention of
the High Court apparently does not seem to have been drawn to
the provisions either of s. 28 of the Act or of Order 20, r. 14,
Civil P.C or of para 3 of Chapter I-M(c) at page 59 of Volume I
of the Punjab High Court Rules and Orders. Para 3 aforesaid
emphasises the importance of specifying a definite date· for the
deposit of money in Court.
It may at this stage appropriately be observed that the omission to state in the decree the order in which the two rival claimants were entitled to exercise their right of pre-emption might
have been due either to the fact that the appellants (who were
impleaded as respondents in the High Court) in view of s. 31 as
interpreted in Ram Swarup v. Munshi and Others(') did not press
their claim and did not ask for the inclusion of a direction regarding their right in the High Court decree, or to the fact that they
may have felt that having expressed their willingness in the trial
Court to deposit Rs. 1,35,000/- it was no longer open to them to
question this valuation. It is also not unlikely that in view of the
decision in Ram Swarup's case(')
the High Court thought
that the only right of pre-emption subsisting on January 6, 1967
was that of respondents 1 to 3 and that there was, therefore, no
occasion for making any consequential order in favour of the appellants under Order 41, r. 33 Civil P.C. The judgment of the
High Court does not contain any discussion on the poin' as to why
no reference was made to the appellants' claims. It would certainly have been more helpful if the High Court had stated something in its judgment on this aspect.
In the circumstances of
this case, however, we need say nothing more on this point.
It is against the decree of the High Court reducing the amount
of deposit 1!0 be made by respondents 1 to 3 that the appellants-
(!) [1963] 3 S.C.R. 858.
A
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G
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A
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MULA v. GODHU (Dua, J.)
!33
pre-emptors have come to this Court on appeal and their right
to appeal is challenged on the ground that the existing law of preemption has retrospectively deprived them of their right to preempt by prohibiting the courts from passing a decree for pre-emption inconsistent with the Act as amended.
The challenge seems
to be well founded.
This CoUI t had
in
Ram
Swamp's case ( 1 )
occasio·1
to
construe the effect of s. 31 of the Act.
According to that decision. s. 31 is plain and comprehensive enough to require an
appellate court to give effect to the substantive provisions of the
Amending Act whether the appeal before it is one against a decree
granting pre-emption or one refusing that relief.
Following the
r;it!o of this decision it must be held that it is not open to this
Court to pass a decree of pre-emption in favour of the appellants
who were deprived in 1960 of their right to secure such a decree
in the present suit. Indeed it was not open ev.~n to the High Court
to pass a decree of pre-emption in favour of the appellants 011
January 6, 1967 and the decree of that court is unexceptionable
in this respect. The argument that the appellants had already s.~
cured a decree in their fovour by the trial Court, which decree
has become final, and that they have folly complied with its terms
and furth.er that in the present appeal, they are merely seeking
modification of the decree of the High Court in favour of respondents I to 3 by getting the amount of pre-emption money enhanced to Rs. 1,35,000/-, without claiming any right of pre-emption
in their own favour, is unsustainabl~. This argu1nent ignores that
the scheme of s. 28 of the Act read with Order 20, r. 14, Civil
P.C. does not postulate decrees of pre-emption in favoar of rival
prc-cmptors on payment of different amounts of purchase money
in respect of the same sale. Such a course may lead to conflicting
decisions on the question of value oi the property sought to be
pre-empted for the purpose~ of pre-emption suit.
Besides the
appellants' right to pre-empt the sale under the unamended law
was admittedly inferior to that of respondents 1 to 3 and the appellants could only be held entitled to ~xercise their right after the
failure of the said respondents to comply with the terms of the
decree in their favour. The right of respondents 1 to 3 was determined by the High Court and it was claimed on the:r behalf at
the Bar of this Court that they had already deposited the preemption money as required by the High Court decree. Tr.deed this
assertion was not disputed on behalf of the appellants.
We arc
accordingly unable to hold that the appellants have successfully
executed the decree of pre-emption in their favour.
The appellants further developed their argument by submitting that the decree passed by the trial Court in their favour was
(t) [1068] J SC.R. 858.
134
SUPREME COURT REPORTS
[1970] 2 S.C.R.
never appealed against and that the same has become final and
binding on ail parties. The only appeal preferred by respondents
1 to 3, according to this submission was from the decree in their
own suit, with the result that the decree in favour of the appellants passed by the trial Court in their suit has by now become
conclusive and unassailable.
We cannot accept this submission.
There is nothing on the record to show that the appeal presented
in the High Court by respondents 1 to 3 was directed against the
decree passed in thi:c:: suit.
Apparently, the appeal was filed
against the decree passed in the consolidated suits clealing with
the rights of both the rival pre-emptors, and all the parties interested in the right of pre-emption were impleaded in the appeal.
Besides, this contention seems to us to be only another way of
putting the same argument, namely. that there can be two or more
different determinations of the amount of pre-emption money in
the two consolidated suits for pre-empting the sale in question. It
also postulates a claim by an inferior pre-emptor to pre-empt the
sale by making the deposit of the pre-emption money before the
superior pre-emptor has failed to comply with the terms of the
decree in his favour.
This argument, as the foregoing discussion
shows, is without merit. In the present case, a further question
arises as to whether or not it was open to the appellants to ask
the High Court not to
vary the determination of pre-emption
money in the appeal preferred by respondents 1 to 3 without formally preferring a separate appeal from the other decree considered to havt~ been passed in the other suit because passing of such
an inconsistent decree on appeal on the question of valuation
would not be permissible in law. No argument on these line< was
addressed in the High Court. The effect of this omission has not
been canvassed in this Court either.
We would, therefore,
express no opinion on this aspect. The final decree relating to the
rival claims of pre-emption in respect of the sale in question, however, seems to be that of the High Court which may well be considered to be binding on all the parties to it.
And then, if the
appellants' claim that the decree passed in their favour by the trial
Court in their suit has already become final and their right is unaffected by the decree of the High Court, then they cannot be
considered to be aggrieved by the impugned decree and, therefore, they cannot claim any locus standi to appeal against it.
From whichever point of view one looks at the position, · the
appellants cannot claim a right of appeal from the decree of the
High Court determining the pre-emption money to be Rs. 1 05,800,
The right to appeal against that decree can only be exercised by
a person whose claim of pre-emption in respect of the sale in
question can ·be considered to have been adversely affected by it.
The appeUants on their own argument possess no such right.
A
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c
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MULA v. GODHU (Dua, J.)
JJj
A
The preliminary objection, therefore, succeeds and allowing
B
the same we dismiss the appeal with costs. Respondents 1 :o 1
claim to have deposited the amount within the time specified by
the High Court and as the appellants do not a,s indeed c0 nnot claim
a .decree in their favour from this Court, it becomes unnecessary
for us to specify any date for the payment of such deposit.
R.K.P.S.
Appeal dismissed.