IMPORTANT POINT
The right of pre-emption is a very weak right.

Headnote:J & K Right of Prior Purchase Act, 1936-Section 15 as amended in 1973-Civil Procedure Code, 1908-Order XXXIX, Rules 1 and 2, Order XXI Rules 58, 99, 101 rw/s 94 and 151-Pre-emption -Claim of right of-After 1973, there is no provision in the Act for an owner of a property contiguous to the property sold to seek pre-emption-Plaintiff asked for grant of decree under clause sixthly of un-amended Section 15 (as existed prior to 1973)-Owner in possession of four rooms along with land appurtenant thereto sold the entire property-Portion under the tenancy sold by purchaser which was challenged by respondent 1 by way of pre-emption suit on ground that property sold was contiguous to the land belonging to respondent 1, plaintiff-Pre-emption suit decreed on basis of clause fifthly of Section 15, a provision which was not the case of plaintiff-Execution petition-Appellant prayed for stay of operation of warrant of possession as he had filed a separate suit for declaration and perpetual injunction challenging the decree obtained by respondent 1-Vendor of appellant also filed a suit seeking a declaration that decree passed must be declared null and void-Execution directed to be stayed pending disposal of two suits.
       Held : What appears to have been amended in 1973 is clause sixthly only. It would be seen that the suit had been filed in 1978 claiming pre-emption under a law that existed prior to the amendment in 1973. After 1973, there is no provision, as aforesaid, in the Act for an owner of a property contiguous to the property sold to seek pre-emption. Thus the plaintiff asked for grant of a decree under clause sixthly of the un-amended Section 15 (as existed prior to 1973). However, the decree that was passed was on the basis of clause fifthly of Section 15 as would be found from paragraph of the judgment of the sub-Judge, Jammu. (Para 11)
       Thus though the decree was sought on a non-existent provision of law, the Court granted it on a provision which was not the case of the plaintiff-respondent No.1. (Para 12)
       This decree was the subject matter of the challenge in two suits, one was filed by Raj Kumar, the vendor of the appellant herein, seeking a declaration that the decree passed by the Court of sub-Judge, Jammu, on 13.12.1984 in Civil Suit No. 177/78 be declared null and void and unexecutable. This suit is still pending. Subsequently, the appellant herein also filed a suit being - File No. 48 - Civil Suit titled J.C. Sehgal vs. D.D. Abrol and Ors., praying for a suit for declaration and permanent injunction on the ground that the decree is a nullity as it had been passed without jurisdiction on a void clause of contiguity-cum-vicinage and that it had been passed on the grounds of wilful fraud, deception and misrepresentation of facts. It is important to state here that the learned Sub-Judge, Jammu, in his order dated 13.11.2001 on the application filed under Order XXI Rule 58. (Paras 13 and 14)
       The Courts below are not justified in executing the decree against the appellant who was not a party to the decree. Likewise, the High Court is not justified in entertaining C.R.No. 4 of 2002 which challenges the interim order which has become infructuous as the appellate Court disposed of the appeal itself by its judgment dated 4.10.2002. The High Court while interfering with the interim orders dated 4.12.2001 has no right to set aside the final judgment of the appellate Court dated 4.10.2002 which has not been challenged before the High Court. As already noticed, one suit was filed by Raj Kumar, the vendor of the appellant herein seeking a declaration that the decree passed by the Sub-Judge, Jammu on 13.12.1984 in Civil Suit No. 177/78 be declared null and void and unexecutable. The appellant herein has also filed a suit being File No. 48 - Civil Suit praying for a suit for declaration and permanent injunction on the ground that the decree is a nullity as it had been passed without jurisdiction on a void clause of contiguity-cum-vicinage and that it had been passed on the grounds of wilful, fraud, deception and misrepresentation of facts. During the pendency of the suits if the decree which was sought to be executed 16 years after the decree of the year 1984 the appellant who is in possession would be dispossessed from the property pending disposal of the suits filed by the appellant. In the facts and circumstances of the case, we direct the execution to remain in abeyance pending disposal of the two suits one filed by Raj Kumar, the vendor of the appellant herein and the other filed by the appellant herein being File No. 48 - Civil Suit Titled J.C. Sehgal vs. D.D. Abrol & Ors. and in the meanwhile the appellant would not be dispossessed. This is especially in view of the fact that the respondent No. 1 is seeking to enforce the rights of pre-emption which Courts have held in several decisions to be a weak right. (Paras 21 to 23)

JUDGMENT

Dr. AR. Lakshmanan, J.-Leave granted.

2. These two appeals arise out of S.L.P. (C) Nos. 21469-21470 of 2002 and filed against the judgment and final order dated 10.10.2002 passed by the High Court of Jammu and Kashmir at Jammu in C.R. No. 231 of 2001 and C.R. No. 4 of 2002, whereby the High Court dismissed the revision petition bearing C.R.No. 231 of 2001 of the appellant herein - J.C. Sehgal and allowed the revision petition bearing C.R.No. 4 of 2002 filed by respondent No.1 - Devi Dass.

3. The short background facts of the case are as under:

One Abdul Rouf Ahmed was the owner in possession of four rooms along with land appurtenant thereto. One of the said rooms and some portion of the land was given to one Raj Kumar on rent as tenant. The aforesaid Abdul Rouf Ahmed sold the entire property to one Issar Dass. Respondent Nos. 2 to 5 herein are the legal heirs of the aforesaid Issar Dass. The tenant Raj Kumar accepted late Issar Dass as his landlord and a fresh rent note was executed during 1967. During the subsistence of the tenancy of the aforesaid Raj Kumar late Issar Dass divided the entire property in four separate portions. The portion under the tenancy of aforesaid Raj Kumar was sold by late Issar Dass to one Ved Paul Gupta through a sale deed dated 20.3.1977 which was challenged by respondent No.1 herein by way of pre-emption suit by taking recourse to the provisions of J & K Rights of Prior Purchase Act. The sole ground taken in the suit was that the property purchased by aforesaid Ved Paul was contiguous to the land belonging to the plaintiff (respondent No.1) as the parnallas of his house were flowing towards the property sold. However, the defendants in the suit did not appear in the case and did not defend the suit filed by respondent No.1 herein. During the pendency of the pre-emption suit, Ved Paul, who constructed on the suit property, sold the same to one Shashi Kant vide sale deed dated 19.5.1978. This fact was within the knowledge of the plaintiff/respondent No.1 herein. The aforesaid Shashi Kant, in turn, sold the suit property to Raj Kumar who was already in possession of the suit property as tenant and continued to remain as tenant till the property was purchased by him. Raj Kumar purchased the suit property vide sale deed dated 1.7.1981. The trial Court, on the basis of the evidence, passed a judgment on 13.12.1984 decreeing the suit, the copy of which has been filed as Annexure-P/1. On 17.1.1998, the appellant herein purchased the suit property from the aforesaid Raj Kumar through a sale deed for valuable consideration. According to the appellant, he had no knowledge about the pendency of the pre-emption proceedings or the order passed thereon. On 20.8.2000, respondent No.1 herein filed a petition for execution before the trial Court. The trial Court vide its order dated 28.8.2000 issued a warrant of possession. On coming to know of the execution proceedings, the appellant herein filed an application raising various grounds under Order XXI Rule 58, 99 and 101 of C.P.C. and prayed for stay of the operation of warrant of possession. The appellant further brought to the notice of the executing Court that he has already challenged the decree in a separate suit and the same is pending for consideration. On 19.12.2000, the appellant filed a separate suit for declaration and perpetual injunction challenging the decree obtained by respondent No.1 herein. The trial Court by its order dated 19.12.2000 granted the temporary injunction and stayed the execution proceedings. Later the trial Court by its order dated 13.11.2001 vacated the interim order granted on 19.12.2000. The trial Judge, by a separate order dated 13.11.2001, rejected the application of the appellant filed under Order XXI Rule 58, 99, 101 read with Sections 94 and 151 of the C.P.C. (Annexure-P/3). The appellant preferred an appeal before the Additional District Judge challenging the orders of the sub-Judge, who vacated the temporary injunction.

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Judicial Analysis

SupremeToday

2004 Supreme(SC) 570

IMPORTANT POINTThe right of pre-emption is a very weak right.

Cases Referred (1)

Judicial Analysis

IMPORTANT POINT
The right of pre-emption is a very weak right.