Jhabbu v. Multan Singh And Others

S.P Goyal, J.:— In this second appeal against the judgment and decree of the learned Senior Sub Judge, Bhiwani, dated December 20, 1977, the only point involved is as to whether on the death of the plaintiff pre-emptor Amra in the trial Court the right to sue survives to his legal representatives and a decree of pre-emption could be passed in their favour.

2. This matter has been concluded by a Division Bench of this Court in Gurdev Kaur v. Smt. Chand Kaur AIR 1971 P&H 416, wherein it was held that the right of pre emption runs with the land and hence the legal representatives of a deceased pre-emptor can continue the suit filed by him. The appeal, however, was admitted as the learned counsel for the appellant challenged the correctness of this Division Bench decision.

3. In Gurdev Kaur's case (supra), reliance was placed on a Supreme Court decision in Hazari v. Neki (dead) by his legal representatives AIR 1968 SC 1205, but the learned counsel for the appellant contended that the ratio of the Supreme Court case was wrongly applied at in that case the pre-emptor had died at the stage of second appeal. No doubt this is so but the Supreme Court in Hazari's case (supra) approved the decisions in Faqir Ali Shah v. Ram Kishan (1907) Punj. Records 133 F.B and Wajid Ali v. Sobhan (1909) I.L.R 31 All. 623. In both these cases, the pre-emptor had died even prior to the filing of the suit but still it was held that the right to sue survives to the legal representatives and suit for pre-emption filed by them was competent.

4. Consequently I do not find any reason to doubt the correctness of the Division Bench decision in Gurdev Kaur's case (supra) with the result that this appeal fails and the same is hereby dismissed but without any older as to costs.

H.L.S

Appeal dismissed.