The main legal point established in the judgment is that a fact admitted by the plaintiff need not be proved and should be treated as a preliminary issue for expeditious resolution.

JUDGMENT :

CR No.09/2023

1. The petitioner has challenged order dated 23.03.2023 passed by learned Additional District Judge, Srinagar, whereby application of the petitioner seeking dismissal of the suit filed by respondent No.1 has been dismissed.

2. It appears that respondent No.1 has filed a suit against the petitioner and proforma respondents for pre-emption under Section 20 of the Jammu and Kashmir Right to Prior Purchase Act (hereinafter referred to as “the Act”) seeking a declaration of the sale deed executed by proforma respondents No.2 to 6 (defendants No.1 to 5 before the trial court) in favour of the petitioner (defendant No.6 before the trial court) in respect of the property along with land measuring 10 marlas covered by Survey No.243 situated at Baghat Barzulla, Srinagar, as null and void. A further decree of mandatory injunction has also been sought by the plaintiff/respondent No.1 directing the defendants to execute the sale deed of the suit property in his favour.

3. In the suit, respondent No.1/plaintiff claimed that adjacent to his house, suit property belonging to defendants 1 to 5 is located and that the land and house of the said defendants form the servient property to that of the property/land of the plaintiff. It has been averred in the plaint the plaintiff had approached defendants No.1 to 5 to purchase the aforesaid property in view of the first right created in his favour under Section 15 of the Act but the said defendants declined to do so and have executed the impugned sale deed in favour of defendant No.6/petitioner herein.

4. It seems that an application came to be filed by petitioner/defendant No.6 before the trial court under Order VII Rule 11 of the CPC seeking rejection of the plaint on the grounds that the property involved is of commercial nature, as such, the suit is barred under Section 5 of the Act. It was also contended that the defendants being third purchasers of the suit property, as such, the plaintiff has no right to maintain the suit against them.

5. The aforesaid application came to be allowed by the trial court in terms of its order dated 28.01.2020 and the suit was dismissed on the ground that the plaint does not disclose any cause of action nor the plaintiff has laid a foundation of the facts to enforce the right of pre-emption under Section 15 of the Act.

6. The aforesaid order came to be challenged by the plaintiff/respondent No.1 by way of a Regular First Appeal bearing RFA No.12/2020 before this Court and vide order dated 13.05.2020 passed by this Court, the order of the trial court was set aside and the case was remanded to the trial court for deciding the matter on merits. In the meanwhile, the parties were directed to maintain status quo in respect of the suit property. While doing so, this Court observed that the contentions raised by the petitioner/defendant No.6 can be determined only after trial of the case and not at that stage.

7. It seems that after the case was remanded to the trial court, the defendants filed their written statement before the trial court wherein they raised a number of preliminary objections, one of which relates to maintainability of the suit. On merits, it was contended by the defendants that the suit property is located at a marginal distance from the property belonging to the plaintiff and it was specifically denied that the property of the plaintiff is dominant and that of the defendants is servient. It has been further submitted in the written statement that the grandfather of the plaintiff died in the year 1994 and that the suit property was sold by its original owner way back in the year 1969 to one Jagdesh Singh but the grandfather of the plaintiff did not challenge the transaction. It has been further submitted that Jagdesh Singh has sold the property to defendants No.1 to 5 in the year 1991 and at that time also, grandfather of the plaintiff was alive and he did not challenge the said transaction. On this ground it has been urged that it i