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1971 Supreme(J&K) 43
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
S. Murtaza Fazl Ali,Janki Nath Bhat,Jaswant Singh,Mian Jalal-ud-Din, JJ.
Jabar Bhat & Ors. - Appellant
Versus
Ashmi & Anr. - Respondent
CSA No. 5/1969
Decided On : 12 August, 1971
Advocate For Appellant: Amar Nath Raina
Advocate For Appellant: J.N. Bhan
A transferee of a portion of land in any survey number which forms part of a joint khewat becomes a co-owner or co-sharer in that khewat to the extent of the land transferred to him and steps in to the shoes of the transferor.
Headnote:
RIGHT OF PRIOR PURCHASE - ACT SECTION LIST - SECTION 14(A)(B)(C) OF THE RIGHT OF PRIOR PURCHASE ACT - SUMMARY - A person who purchases land from a specific survey number but from a joint Khewat can be regarded as a co-sharer of the land in entire Khewat and if he be a vendee can he be able to defeat the pre-emptor who is admittedly a co-sharer in the khewat. MAIN LEGAL POINT - A transferee of a portion of land in any survey number which forms part of a joint khewat becomes a co-owner or co-sharer in that khewat to the extent of the land transferred to him and steps in to the shoes of the transferor.
Fact of the Case:
Rahman Dar sold 7 Kanals 13 marlas of land in Khewat No. 38, comprising survey Nos. 820-min, 4 Kanals 17 marlas No. 1736-min, 1 kanal, No. 1716, 17 marlas and No. 1736-min 19 marlas, situate in village Ludura Tehsil Sopore to Jabar Bhat, Mohammad Bhat, Ali Bhat and Ahad Bhat for a consideration of Rs, 3,500/- vide sale deed dated 10-2-1965 and registered on the same date. Mst. Ashmi plaintiff sought to pre-empt this sale on the ground that she and defendant No. 5 Rahman Dar vendor, descended from a common ancestor and she was a co-sharer in the land; that the defendants 1 to 4, the vendees, had no right as compared to her to purchase this land; that the sale price was only Rs. 1,500/- The suit was resisted on various grounds, denying the right of the plaintiff to institute the suit and at the same time alleging waiver, payment of consideration of Rs. 3,500/- and improvements. Later on during the pendency of the suit the original vendor Rahman Dar sold further four Kanals of land by means of a sale deed dated 23-5-1967 situate in the same village from the same Khewat No. 38 but comprising different survey No. 2231 for a consideration of Rs. 8,000/- in favour of the same vendees and one Mukhta Bhat. The said sale deed was registered on the same date i.e. 23-5-1967.
Finding of the Court:
The vendees by purchasing land from survey No. 2231 in Khewat No. 38 situate in village Ladhura Tehsil Sopore became co-sharers alongwith the other co-sharers of the land in the entire khewat and therefore could successfully defeat the right of pre-emption of Mst. Ashmi.
Issues: Whether the plaintiff has a right of prior purchase regarding the suit land as against the defendants 1 to 4?
Ratio Decidendi: A transferee of a portion of land in any survey number which forms part of a joint khewat becomes a co-owner or co-sharer in that khewat to the extent of the land transferred to him and steps in to the shoes of the transferor.
Final Decision: Appeal accepted and suit dismissed.
2. A number of issues were raised by the trial court and after recording the evidence of the parties the trial court decreed the plaintiffs suit holding that the defendants vendees could not defeat the right of plaintiff, who was admittedly a co-sharer in the Khewat by purchasing four kanals of land from a survey number different from those from which the earlier land was purchased by them. This judgment was based on a Full Bench authority of this court reported as AIR 1963 J & K 11. The lower appellate court also held the same view and dismissed the appeal of the vendees by its order dated March 31, 1969. Against this decree of the lower appellate court, the vendees have come up in further appeal to this court.
3. We have heard the learned counsel for the parties.
4. We are, however, not concerned in this appeal with most of the issues. The only issue that has been the subject matter of discussion was issue No. 1 which runs as under: -
Whether the plaintiff has a right of prior purchase regarding the suit land as against the defendants 1 to 4? O.P.P.
5. The brief facts as held proved by both the courts for the disposal of this issue are that the vendor Rahman Dar sold 7 kanals 13 marlas of land from Khewat, No. 38 comprising survey Nos. 820-min. 1736-min, 1716-min situate in village Ladura Tehsil Sopore to the vendees Jabar Bhat, Mohammad Bhat, Ali Bhat and Ahad Bhat by means of sale deed dated 10-2-1965 and registered on the same day. Later on the same vendor Rahman Dar by means of another sale deed dated 23-5-1967 and registered on the same day further sold four kanals of land in favour of the above mentioned vendees and their brother Mukhta Bhat from the same Khewat No. 38 village Ladura Tehsil Sopore but from a different survey number 2231. The second sale was made during the pendency of the suit. Two points now arise for determination in this appeal; firstly whether the vendees could improve their title during the pendency of the suit so as to resist a suit for the exercise of the right of prior purchase and secondly whether the vendees became co-sharers of the land sold although the second sale was from a different survey No. 2231 from which no portion was sold by means of the earlier sale deed, the survey numbers of both the sales, however, being part of Khewat No. 38.
6. About the first proposition of law there has not been any argument because the matter is settled by more than one Full Bench decisions of this court which have held that a vendee can improve his position during the pendency of the suit in order to defeat the right of
