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2025 Supreme(Online)(J&K) 1219
IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU
MR. SANJAY DHAR, J
IQBAL SINGH – Appellant
Versus
DURGA DEVI AND OTHERS – Respondent
CFA No.19/2001
For the Appellants/Petitioners: Mr. K. L Pandita
For the Respondents: Ms. Mehrukh Syedan
The right of pre-emption is a weak right that can be waived by the conduct of the pre-emptor, as established by prior legal proceedings.
Headnote:(A) J&K Right of Prior Purchase Act - Section 15 and Section 21 - Right of pre-emption - The appellant challenged the trial court's decree granting the plaintiff the right of prior purchase for property based on claims of co-ownership and a common interest. The court found the right of pre-emption to be a weak right, capable of being waived by the conduct of the pre-emptor. The earlier suit revealed ambiguous intentions regarding enforcement of pre-emption, leading to the conclusion that the right was effectively waived. (Paras 18 to 30)
(B) Property Rights - The court stressed that the alleged co-ownership and joint purchase were not sufficient to support a right of pre-emption. Instead, conduct demonstrating waiver of this right was key, reaffirming that the legislative intent behind pre-emption laws does not infringe on constitutional rights to property. (Paras 30 to 31)
| Table of Content |
|---|
| 1. summary of the facts leading to the right of prior purchase claim. (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. discussion of the plaintiff's conduct regarding waiver of pre-emption. (Para 10 , 13 , 14 , 15) |
| 3. elaboration on the weakness of pre-emption rights supported by case law. (Para 20 , 21 , 22 , 23) |
| 4. conclusion on the waiver of right to pre-emption by conduct. (Para 26 , 28 , 29) |
| 5. final decision and implications on property possession. (Para 31 , 32) |
JUDGMENT
1) The appellant has challenged judgement and decree dated 14.02.2001 passed by the learned District Judge, Poonch (hereinafter to be referred as the trial court), whereby suit filed by respondent No. 1/plaintiff for right of prior purchase has been decreed in her favour and a decree of possession of the suit property has been passed against the appellant/defendant No. 1.
2) It seems that respondent No. 1/plaintiff had filed a suit against the petitioner and proforma respondent claiming right of prior purchase in respect of the property comprising a kacha house and vacant piece of land situated in Poonch Town. The said property was purchased by the plaintiff from Isher Dass the predecessor-in-interest of the proforma respondents in terms of sale deed dated 26.05.1987. As per the case of respondent No.1/plaintiff, she along with father of Isher Dass had jointly purchased the suit property vide sale deed dated 28.04.1976 for an amount of Rs. 11,000/-. It was claimed that the plaintiff and predecessor-in-interest of proforma respondents did not partition the aforesaid property and after the death of Roop Chand the original co- owner of the property in question, his share in the property devolved upon Sh. Isher Dass, the predecessor-in-interest of the proforma respondents. It was further averred in the plaint that one room each out of the joint property that was purchased, remained in possession of the parties but no partition was effected.
3) The plaintiff claimed that she came to know that Isher Dass, the predecessor-in-interest of the proforma respondents was negotiating sale of his share in the aforesaid joint property in favour of the appellant herein and accordingly, a notice was served by the plaintiff through her counsel upon the predecessor-in-interest of the proforma respondents but despite this, he sold his share of the property in question to defendant No.1/appellant herein in terms of sale deed dated 26.05.1987 for an amount of Rs. 40,000/-. It was pleaded by the plaintiff that actual sale consideration was Rs. 32,000/- but in the Sale Deed it was shown as Rs.40,000/-.
4) On the basis of aforesaid pleadings, the respondent No. 1/plaintiff claimed right of prior purchase against the defendants, on the grounds that property in question was un-partitioned and she being a co-sharer of the property, has right of prior purchase in respect of said property. Another ground urged by the plaintiff was that the suit property is site of the building and the structure, as such, she has a right of pre-emption. It was also contended by the plaintiff that the property in question has a common staircase and a common access and that suit property is a dominant heritage, as such, the plaintiff has a right of pre- emption. It was further contended that the portion of the property belonging to the plaintiff is contiguous to the suit property as such, being an owner of the contiguous property, she has a preferential right of prior purchase to the exclusion of others.
5) The suit was contested by the appellant, the purchaser of the property as well as by the other defendant who was the original co-owner of the property. In their written statements, the defendants pleaded that the plaintiff had previously filed a suit in respect of the same property seeking a permanent injunction against the appellant herein in which she had clearly admitted that the suit property had been partitioned. It was submitted that the said suit was dismissed for non-prosecution. The defendants also ple
