Lassa Baba vs Gaffar Butt and Others

Jaswant Singh, J.—This civil first appeal which is directed against the judgment and decree dated 7-7-1966 of the learned District Judge,

Srinagar, dismissing the appellant's suit for possession of 36 Kanals and 9 marlas of land situate in Chandi Har, Tehsil Khas Srinagar, on the basis

of right of prior purchase arises in the following circumstances:

The aforesaid land comprised in Khasra Nos. 1 (measuring 6 Kanals and 7 Marlas); 2 (measuring 5 Kanals and 2 Marlas); 3 (measuring 2

Kanals and 19 Marlas); 4 (measuring 2 Kanals and 17 Marlas); 5 Min (measuring 2 Kanals and 17 1/2 Marlas); 7 (measuring 10 Kanals and 14

Marlas); 8 (measuring 5 Kanals and 12 1/2 Marlas); Khewat No. 65 Min, was sold by Shri Ragho Koul son of Shri Shiva Koul, Smt. Sidha

Lakashi widow of Shri Mahesher Koul and Shri Bansi Lal Koul son of Shri Mahesher Koul residents of Syed Kucha, Kawdara, Srinagar, in

favour of Gaffar Butt and Mohd. Butt sons of Mohda Butt residents of Chandihar Wanganpora, Tehsil Khas vide: sale deed dated 27-4-1962 for

an ostensible consideration of Rs. 10,000/-. Claiming themselves to be the tenants of the suit land excepting Khasra No. 3 (measuring 2 Kanals

and 19 Marlas) the appellants brought a suit in the Court of District Judge, Srinagar, on 20-7-1962 for preemption of the aforesaid land. The suit

was resisted by the respondents 1 and 2 inter alia on the grounds that the market value of the suit land being 50,000/-rupees the suit was beyond

the jurisdiction of the Court; that the suit had not been properly valued for purposes of court-fees and jurisdiction, that the suit was not tenable as,

the appellants had no preferential right of purchase as against them; that the suit was bad for mis-joinder of parties and non-joinder of necessary

parties as also for mis-joinder of causes of action; that the suit was bad for joinder of strangers; that the defendants were protected tenants of the

suit land, that Rs. 10,000/- had been fixed in good faith and actually paid to the vendors and the market value of the suit lands was not less than

75,000/- rupees.

On the pleadings of the parties the following issues were framed:

(1) Whether the plaintiffs have a right of prior purchase over defendants 1 and, 2 over the suit land? O.P.P.

(2) On proof of Issue No. 1 in affirmative, whether the sale price has been paid or fixed in good faith? O.P.D. 1 & 2.

(3) On Issue No. 2 being proved, what is the market price of the suit land? O.P.P.

(4) Whether the suit is not maintainable in present form, if so, on what grounds? O.P.D. 1 and 2.

(5) Whether there is mis-joinder of parties, non-joinder of necessary parties and mis-joinder of causes of action if so, what would be its effect on

the suit? O.P.D. 1 & 2.

The plaintiffs examined Habib Sheikh, Ghulam Din, Ramzan Butt, Wall Butt, Mohd. Abdullah Patwari, and Ghulam Mohd. Butt witnesses.

Rahman Butt one of the plaintiffs also appeared as a witness on his own behalf. In rebuttJ the defendants-vendees examined Sadiq Butt, Assad

Rather, Ragho Koul, Salam Butt, Sultan Dar, Ali Mohd., Ghulam Mohi-ud-Din and Haji Kamal Butt. Besides these witnesses Gaffar Butt

defendant also appeared as his own witness. After the close of defendants' evidence the plaintiffs examined Sultan Sheikh, Ghulam Din and

Rehman Seikh. In addition to these witnesses Lassa Baba and Gaffar Wani Plaintiffs also appeared as witnesses on their own behalf.

On consideration of the evidence led by the parties the learned trial Court came to the conclusion that the suit was bad as Mst. Hajra, one of the

plaintiffs, did not figure as a tenant in the Khasra Girdawari produced by the plaintiffs. It further came to the conclusion that Mst, Hajra was a

minor and Khaliq Baba did not leave behind any daughter bearing the name of Mst. Hajra. Consequently it held that the suit was liable to be

dismissed as the plaintiffs had joined a stranger with themselves as a co-plaintiff. It accordingly decided issue No. 5 against the plaintiffs. In regard

to issue No. 1 the trial Court held that since Khasra No. 3, measuring 2 kanals and 19 marlas, was admittedly in possession of the defendants-

vendees as tenants and from the deposition of the patwari it was proved that Khasra No. 4 measuring 2 kanals and 17 marlas was also in the

cultivating possession of the defendants-vendees the plaintiffs could not be held to be tenants of these two parcels of the suit land. It further came

to the conclusion that the sale being one and indivisible and the vendors and vendees having treated the whole transaction as one and indivisible

and the sale price also being consolidated, and all the plaintiffs not being in possession of all the Khasra numbers sold, some of them being tenants

of some Khasra Numbers and some being tenants in the other Khasra Numbers the plaintiffs who were not tenants of a particular Khasra Number

could not be granted a decree for that Khasra number on the basis of his being a tenant of the other Khasra number, and it not being possible to

bifurcate the transaction or the sale price of the different portions of the land the plaintiffs could not succeed in their claim. It would be

advantageous at this stage to refer to the following passage occurring in the judgment of the trial Court:

From what has been stated above, the position that emerges is that the defendants-vendees are the tenants of two survey numbers, one measuring

2 kanals and 19 marlas and the other 2 kanals and 17 marlas (survey numbers 3 & 4). Some of the defendants are the tenants of a portion of the

land sold and some Ors. are tenants of other portions. The sale and the sale price are one and indivisible. The vendors and the vendees treated the

whole transaction as one and indivisible. The plaintiffs who are not tenants of a particular survey number cannot be granted decree for possession

on the basis of Right of Prior Purchase of that Survey number. The bifurcation of the sale price would not be an easy matter, considering the fact

that the land sold may not be of one and the same quality. The pre-emptor and the vendees are both tenants of portions of the land sold. It cannot

therefore, be held that the plaintiffs-pre-emptors have succeeded in establishing the prior right of purchase.

Relying, upon the decisions reported in 1 J & K LR 366; 4 J & K LR 193 and AIR 1934 Lah 429 the trial Court decided Issue No. 1 against the

plaintiffs.

Its finding in regard to issue No. 2 was that the price of the land sold was bona fide fixed at Rs. 10,000 and the same was actually paid.

Accordingly it decided the issue in favour of the defendants-vendees.

In view of its finding in respect of issue No. 2 the trial Court refrained from deciding issue No. 3.

In regard to issue No. 4 it held that this issue being connected with issue No. 5 which had been found against the plaintiff, the suit was liable to

be dismissed.

On the above findings the trial Court dismissed the suit of the plaintiffs-appellants on 7-7-1966 as already stated.

Against this judgment and decree the plaintiffs came up in appeal to this Court and for a proper and effective disposal of the matter we thought

it necessary to remit the following two issues to the trial Court vide our order dated 30th July, 1968.

(1) Whether Mst. Hajra shown in the plaint as daughter of Khalik Baba is the same person as Mst. Azizi?

(2) If issue No. 1 as set out above. Is proved in the affirmative whether Mst. Azizi alias Mst. Hajra is or can be regarded as a tenant of the land

comprised in Survey Nos. 1 and 2 situated in Village Chandihar, Tehsil Srinagar.

The Trial Court has In the course of its report submitted to this Court, found that Mst. Hajra's father had three wives, that Mst. Shah Mali, the

mother of Mst. Hajra, was the second wife of Khaliq Baba that Khaliq Baba divorced Mst. Shah Mali and thereafter married Mst. Azizi and that

he had to change the name of his daughter from Mst, Azizi to Mst. Hajra because the names of both his wife as well as his daughter being Mst.

Azizi, he did not think it proper to call both his daughter and wife by the same name. It has therefore, found issue No. 1 in favour of the plaintiff. As

regards issue No. 2 it has found that Mst. Azizi, the daughter of Khaliq Baba, was entered as tenant in the Girdawari as far back as Rabi 1961,

that the land left by Khaliq Baba was being cultivated by his son and daughter and that the defendants having admitted all the plaintiffs including

Mst. Azizi to be tenants, Mst. Azizi could not but be regarded as a tenant of survey Nos. 1 and 2 of the suit land.

In view of the evidence recorded by the trial Court after remand it cannot now be held that Mst. Hajra was a total stranger or the suit was bad

on account of her joinder as co-plaintiff. This however, does not put an end to the controversy. The real question that still remains to be decided is

whether in view of the fact that the plaintiffs have been found not to have any preferential or superior right of purchase in respect of Khasra Nos. 3

and 4 of the suit land and some of these are tenants of some suit survey numbers and some of Ors. , the suit can succeed. It is well settled that a

purchaser cannot be required to submit to partial pre-emption nor is he entitled to demand it. I am fortified in this view by a decision of the Privy

Council to Mohammad Wajid Ali Khan v. Purari Singh AIR 1929 PC 58.

It would be well at this stage to refer to Section 14 of the Right of Prior Purchase Act as amended by the Jammu and Kashmir Right of Prior

Purchase Amendment) Act 1959 which, governs the suit:

Persons in whom right of prior purchase vests in respect of sale of agricultural land and village immovable property. Notwithstanding anything

contained in any law, rule or custom but subject to the provisions of Section 13, the right of prior purchase in respect of agricultural and and village

immovable property shall west-

(a) Where the sale is by a sole owner or occupancy tenant or, in the case of land or property jointly owned or held, by all the co-sharers jointly-

Firstly- in the tenant cultivating such land where the sale is of agricultural land; in the tenant occupant thereof where the sale is of village immovable

property, and

Secondly- in the persons in order of succession who but for such sale would be entitled on the death of the Vendor or Vendors, to inherit the land

or property sold:

(b) when the sale is of a share out of the joint property and is not made by all the co-sharers jointly:

Firstly- in the lineal descendants of the Vendor in order of succession;

Secondly- in the co-sharers, if any;

Thirdly- in the tenant cultivating such land where the sale is of agricultural land and in the tenant occupant when the sale is of village immovable

property; and

Fourthly-in the persons, not included under the above categories in order of succession, who but for such sale would be on the death of the

Vendor entitled to inherit the land or property sold; (c) if no person having the right of prior purchase under Clause (a) and (b) exercise it then:

Firstly- in the owners of the mahal wherein such agricultural land or property is situate; and

Secondly- in the tenants other than those specified above.

Looking at the context the Intention of the Legislature, appears to be that In case the original contract of sale be one and indivisible the right of

prior purchase should extend to the whole of the land sold and not to a portion of it, i.e., the person claiming prior purchase should be a tenant in

the entire property which is subject of the sale.

The two rulings namely Mt. Zainab Bibi Vs. Umar Hayat Khan and Others, and AIR 1961 J & K 36 (to which my Lord the Chief Justice was

a party) cited by the learned Counsel for the appellants are clearly distinguishable and do not help his clients. The first ruling is founded on the

peculiar language of Section 16 of the Agra Pre-emption Act. The second ruling viz., AIR 1961 J & K 36 relates to a case where different parcels

of land were sold by two different vendors to two different vendees who were absolute strangers but the transactions were embodied in a single

sale deed and the sale price was stated to be a consolidated sum. It was in view of these circumstances that it was held that the suit was not hit by

the rule against partial preemption and it was observed that the rule against partial pre-emption applied only to those transactions which while

contained in one deed could not be broken or separated; it could not be applied to a case where two distinct and separate transactions of sale are

embodied in one Bale deed in which case each of the transactions is an independent sale by itself and a pre-emptor would be able to preempt each

such sale or one of them only as he might choose.

For the foregoing reasons we are of opinion that as the plaintiffs have failed to prove their superior right in respect of the entire land their suit

cannot succeed.

In the result the appeal fails and is hereby dismissed but in the circumstances of the case without any order as to costs.

S.M.F. Ali, C.J.

I agree.