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CASE NO.: Appeal (civil)  2713-14 of 2004

PETITIONER: J.C. Sehgal

RESPONDENT: Devi  Dass  & Ors.

DATE OF JUDGMENT: 27/04/2004

BENCH: S. Rajendra Babu, Dr. AR. Lakshmanan & G.P. Mathur.

JUDGMENT: J U D G M E N T

(Arising out of S.L.P.(C)Nos. 21469-21470 of  2002)

Dr. AR. Lakshmanan, J.

Leave granted.

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 \026 J.C. Sehgal and allowed  the revision petition bearing C.R.No.4 of  2002 filed by respondent No.1 \026 Devi Dass.  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

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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.  The  IInd  Additional District Judge by his order dated 4.12.2001, granted interim order after  hearing the appellant herein.  The appellant preferred a revision petition before the High  Court challenging the judgment of the sub-Judge dated 13.11.2001 against the interim  orders of the IInd  Additional District Judge in the application filed under Order XXI Rule  58, 99, 101 read with Section 94 and 151 of C.P.C.  Respondent No.1 herein also filed  a revision petition before the High Court against the interim orders of the IInd Additional  District Judge.  The District Judge allowed the appeal and stayed the execution of the  ex parte decree till the final decision of the suit.  The High Court took both the petitions   for hearing and by its judgment dated 10.10.2002 rejected the civil revision petition  bearing No. C.R.231/2001 holding that there is no merit in the revision petition and  allowed the revision petition filed by respondent No.1 herein bearing C.R.No.4/2002 in  view of the dismissal of the revision petition filed by the appellant  herein.  According to   the appellant, the High Court failed to consider that the revision petition bearing  No.C.R.4/2002 filed by respondent No.1 herein had become infructuous as the   appellate Court disposed of the appeal on 4.10.2002 itself and, therefore, nothing  survives in it.  Further, respondent No.1 did not challenge the order dated 4.10.2002  passed by the Additional District Judge.  It was further submitted that the High Court did  not consider the various issues raised by the appellant in his revision petition.  Being  aggrieved by the order passed in C.R.No.231/2001 and C.R.No.4/2002, the above  appeals have been filed. We heard Mr. Ranjit  Kumar, learned senior counsel appearing for the appellant  and Mr. Gopal Jain, learned counsel appearing for the respondents. Our attention was drawn to the relevant pleadings filed in this case and the  judgment and orders passed by the High Court and the lower Courts and also to the  annexures. Mr. Ranjit Kumar, learned senior counsel appearing for the appellant, submitted  that the High Court was not justified in not considering the various pleas raised by the  appellant as available to him under Order XXI Rule 58, 99 and 101 of C.P.C.  According  to him, the Courts below are not justified in rejecting the petitions on the ground that the   purchase of the suit property by the appellant was hit by principles of lis pendens  and  whether the lis pendens is applicable to the facts of the present case.  It was further  submitted that the High Court was not  justified in entertaining C.R.No.4/2002 filed by  respondent No.1 herein challenging the interim order which has become infructuous as  the appellate Court disposed of the appeal itself by its judgment dated 4.10.2002.  He  further submitted that the Courts below have committed error in executing decree  against the appellant  who was not a party to decree and the present decree  was  passed on one-sided evidence only and that the Courts below are not justified in not  considering the fact that the decree holder voluntarily admitted and accepted the  appellant as tenant qua the property in question.   Per contra, Mr. Gopal Jain, learned counsel appearing for the respondent,  submitted that the water parnallas  were fitted to the property long before the sale of the  property to the appellant.  The water of parnallas  passes through the property of the  appellant and that the order of the sub-Judge in the pre-emption suit filed by respondent  No.1, clearly takes into account the fact that the property of respondent No.1 is in the  vicinity of the house of the appellant and that the parnallas fitted in the roof pass  through the said property, therefore, it is proved that the property of respondent No.1 is  the dominant property and hence respondent No.1 has a right of prior purchase under  Section 15(5) of the Prior Purchase Act.  It was held that no notice of the sale of the  property was given to respondent No.1 even when he was ready and willing to offer the  price for the property.  According to  learned counsel appearing for the respondents, the  High Court   has rightly held that the appellant cannot be said to have improved his right  by purchasing the property from Raj Kumar and the High Court was further correct in  holding that the improvement in status for the purpose of Section 15(5) of the Prior  Purchase Act can only be applicable to Raj Kumar and the appellant having purchased  the property from Raj Kumar cannot and would not fall under Section 15(5) of the Prior

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Purchase Act.  Argued further,  learned counsel submitted that the High Court was right  in holding that once the order in execution petition of the sub-Judge dated 13.11.2001  was upheld, it would not be apt to give any further life to the interim order dated  13.11.2001 passed by the   IInd Additional District Judge, Jammu.  He further submitted  that the decree dated 13.12.1984 was not challenged  and , therefore, attained finality  with the efflux of time and any argument regarding raising of permanent structure etc.  by the appellant  cannot be sustained at the belated stage.         Mr. Ranjit Kumar, learned senior counsel, drew our attention to the following  important events  from the rejoinder affidavit: (a)     The respondent filed suit against Ved Paul on 19.5.1978. (b)     During the pendency of the suit, the suit property was sold to one Shashi Kant.   The aforesaid suit property was again came to be sold to one  Raj Kumar on  1.7.1981.  However, none of these two subsequent purchasers were made  parties to the suit.   The defendant-Ved Paul having sold the suit property did  not prosecute the suit.   (c)     The suit of the respondent came to be allowed on 13.12.1984 ex parte.   (d)      Though the suit was decided on 13.12.1984, the respondent decree holder did  not seek execution of the same for a considerable time (till 28.8.2000). (e)     In the meantime, the purchaser of the aforesaid suit property, Raj Kumar, sold  the suit property to the appellant herein on 17.1.1998. (f)     The respondent initiated execution proceedings only on 28.8.2000 seeking  execution of the order dated 13.12.1984. (g)      The appellant having come to know of the decree dated 13.12.1984 and also  the execution proceedings initiated by respondent No.1, the appellant made  application before the executing Court objecting to the execution.  As the  executing Court cannot go behind the decree, the application was rejected. (h)     The appellant, in these circumstances, filed a suit for declaration and perpetual  injunction challenging the decree dated 13.12.1984.  The trial Judge granted  interim stay.    However on 13.12.1984, the trial Court vacated the stay.   (i)     The appellant preferred an appeal against the order of vacating stay.  The IInd  Additional Judge  granted interim stay on 4.12.2001. (j)     The aforesaid interim stay was challenged by the respondent before the High  Court.    During the pendency of the aforesaid proceedings, the Additional  District Judge passed an order dated 4.10.2002 and made the interim stay  absolute. (k)     The High Court, vide its impugned judgment, set aside the interim order dated  4.12.2001 and also set aside the order dated 4.10.2002, though the order dated  4.10.2002  was not impugned before it.   (l)     It is also a fact that the decree dated 13.12.1984 was ex parte and the trial  Court had no opportunity of considering the other side of story.  The trial Court  allowed the suit ex parte in the absence of objections.

In reply to the preliminary submissions made by the counsel for the respondents,    learned  senior counsel appearing  for the appellant submitted that the decree dated  13.12.1984 is ex parte decree and, therefore, the sub-Judge relied upon the  contentions of the plaintiff before him and that the appellant herein has already filed  a suit giving the complete facts of the case.  It was further submitted that respondent  No.1 made false allegation about the existence of his house and parnallas on the  date of institution of the suit for pre-emption.  In fact, no house was in existence at  the time of the suit during 1978 nor any house is existing even today on the portion  of respondent No.1.  Hence, it was submitted that the ground of pre-emption by  respondent No.1 had no leg to stand in law and, therefore,  respondent No.1 lost his  right of prior purchase with respect to the suit property.  It was further submitted that  the appellant was not a party to the decree dated 13.12.1984 and defendant No.1,  who had already  sold the  suit property during the pendency of the suit has not  prosecuted the suit.  Respondent No.1, who had the knowledge of the subsequent  sales had never taken steps to implead the subsequent purchasers.  Hence it was  submitted that the appellant is entitled to file a suit and challenge the decree and  can also take all the pleas available to him. We have briefly set out the facts of this case and also the contentions raised by  the counsel appearing on either side with reference to pleadings and documents  and also with reference to the proceedings before the Courts below.  We shall now  consider the respective submissions. As already noticed, two civil revision petitions were filed before the High Court ,  One  was filed by the appellant  herein, being C.R. No.231 of 2001,   against the

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order of the sub-Court dated 13.11.2001 whereby   the trial Court rejected the  application of the appellant filed under Order XXI Rules 58, 99 and 101 of the  C.P.C. challenging the execution proceedings pursuant to the decree dated  13.12.1984, which decree was put into execution only in the year 2000 though the  decree was of 1984.    The second revision petition  being C.R.No.4/2002, was filed  by respondent No.1 herein challenging the interim order of the IInd Additional  District Judge, Jammu dated 4.12.2001 passed in appeal preferred by the appellant  under Order XXXXIII Rule 1(r) of the C.P.C.  These appeals are against the order of  the learned sub-Judge, Jammu, who had dismissed the prayer for injunction under  Order XXXIX Rules 1 and 2 filed by the appellant herein in his suit, the suit having  challenged the decree dated 13.12.1984.  The Additional District Judge, in appeal,  passed an interim order staying the execution proceedings.  The High Court vide its  impugned judgment dismissed the civil revision preferred by the appellant herein  and allowed the civil revision preferred by respondent No.1 herein.     The decree  that was challenged by the appellant in a suit was passed on 13.12.1984 in a suit for  pre-emption filed by respondent No.1 herein under the provisions of the J & K Right  of Prior Purchase Act, 1936 (In short, "the Act") wherein the plaint averments were: "In the plaint, it has been averred by the plaintiff  that he owns a  house situated at Mohalla Mastgarh, Jammu, whereas defendant  Nos. 1 and 2 owned a house and a vacant piece of land in the same  locality  which is contiguous to the house of the plaintiff; that all the  parnallas of his house flow towards the land of defendant No.2 since  the construction of his house and his house is also contiguous’ to the  house of the defendant and as such is vested with the right of pre- emption in the house of defendant No.2."  (Emphasis  supplied)

The suit was filed on 17.3.1978 wherein averment was to the aforesaid effect.   The provision of law as existing under the Act vide Section 15 thereof, as amended  in 1973, reads as under: "15 \026 Persons in whom right of prior purchase vests in Urban  Immovable Property \026 the right of prior purchase in respect of urban  immovable property shall vest. Firstly \026 in the co-sharers of such property, if any; Secondly \026 where the sale is of the site of the building or  structure, in the owners of such building or structure; Thirdly \026 where the sale is of property having a stair case  common to other properties, in the owners, of such properties; Fourthly \026 where the sale is of property having a common outer  entrance with other properties, in the owners of such properties; Fifthly \026 where the sale is of a servient property in the owners of  the dominent property and vice-versa; Sixthly \026 in the tenant occupant thereof."  

However, earlier, prior to 1973 amendment, stood as under: "15 \026 Persons in whom right of prior purchase vests in Urban  Immovable Property \026 The right of prior purchase in  respect of  Urban Immovable Property shall vest \026

Firstly \026 in the co-sharers of such property, if any;

Secondly \026 where the sale is of the site of the building or  structure, in the owners of such building or structure;  

Thirdly \026 where the sale is of property having a stair case  common to other properties, in the owners, of such properties;

Fourthly \026 where the sale is of property having a common outer  entrance with other properties, in the owners of such properties;

Fifthly \026 where the sale is of a servient property in the owners  of the dominant property and vice versa;

Sixthly \026 in the owners of property contiguous to the property  sold."

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Thus 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 which reads as  under: "From the  statement of the plaintiff, which is supported by as  many as four witnesses produced by him namely, PW 1 Amar Nath,  PW 2 Pradeep Kumar, PW 3 Mast Ram and PW 4 Preetam Singh  during the trial, who in one voice have stated that the suit property is  quite in the vicinity of the plaintiff’s house and the water of the  parnalla fitted in the roof of the plaintiff’s house passes through the  suit property, it stands proved that the plaintiff’s house is the  dominant property to the suit property and as such the plaintiff has  right of prior purchase under Section 15(5)  of Prior Purchase Act."

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. 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 has noted at  pages 51-52 in para 7 as under: "It is no doubt true that ground of prior purchase in respect of  vicinage has been repealed but the question is whether the decree  dated 13.12.1984 passed by this Court was on the ground of  vicinage or on the ground mentioned in Section 15(5) of the Prior  Purchase Act.  A bare perusal of the judgment dated 13.8.1984    reveals that judgment and decree has been passed in terms of  Section 15(5) of Right of Prior Purchase Act on the ground that  plaintiff’s house is the dominant property to the suit property and the  water of the parnallas of the house of the decree holder passes  through the suit property.  The contention of the learned counsel for  the applicant that the decree has been passed on the ground of  vicinage is without merit.  Though, it has been mentioned in the suit  as well as in judgment that suit property is contiguous to the house  of plaintiff, but by no stretch of imagination, it can be said that  decree has been passed on the ground of vicinage."            [Emphasis supplied]

Thus, it is seen that though respondent No.1 had sought pre-emption on a non- existent provision of law, as seen earlier, the Court granted such pre-emption  decree on another ground which had not been argued and thus the said decree was  the subject matter of challenge in the two suits, as aforesaid.

This apart, that if the decree which was sought to be executed, 16 years after  the decree of the year 1984 is executed in 2000, the appellant, who is in  possession, would be dispossessed from the property pending disposal of the suit  filed by the appellant, especially when such decree is sought to be executed is a  nullity on account of the fact submitted in the legal submissions made.

Learned counsel for the respondent, in fact, has fairly conceded at the time of  arguments by the respondent’s counsel that the civil revision preferred by the

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respondent herein was against the interim order passed by the IIIrd Additional  District Judge, Jammu, dated 04.12.2001 granting stay of execution proceedings  pending the suit of the appellant herein.

In that Civil revision, the High Court did not pass any stay order.  The IIIrd  Additional District Judge went on to pass a final order in that appeal under Order  XXXXIII Rule 1 (r) on 04.10.2002 making the stay absolute pending the suit of the  appellant herein.  This order dated 04.10.2002 was never challenged before the  High Court.  These facts would be apparent from the judgment of the High Court  itself.  It was contended before the High Court that how could the order dated  04.10.2002 be set aside when the same was not the subject-matter of challenge  before the High Court.  The High Court, however, held as under: "However, without commenting on this controversy so far as the  above aspect of the matter is concerned, to say that once a  subordinate Court whose interim order is subject matter of challenge  decides a matter finally and that should deprive this Court from  pronouncing upon the correctness of proceedings is an argument  which cannot be sustained.  By this process, a subordinate Court  cannot be given a handle to put the superior Court in a position  which disenables it from pronouncement upon the validity or  correctness of an order."  

It was submitted that the above finding is an erroneous finding of the High Court  as fairly submitted by the counsel for the respondent herein, inasmuch as when the  High Court did not stay the proceedings before the IIIrd Additional District Judge and  the order passed by the Third Additional District Judge was not challenged or  appealed against and only the interim order was appealed against.  The High Court  ought not to have set aside the order dated 04.10.2002, the final order passed by  the Third Additional District Judge as has been done by the High Court in the  operative portion of its judgment.   

In the instant case, respondent No.1 is seeking to enforce the right of pre- emption which this court had held in several decisions to be a very weak right. In  Bhau Ram vs. B. Baijnath Singh, (1962) Supp. 3 SCR 724, this Court held at  pages 740-741 as under: "The question as to the constitutionality of a law of pre-emption  in favour of a co-sharer has been considered by a number of High  Courts and the constitutionality has been uniformly upheld.  We  have no doubt that a law giving such a right imposes a reasonable  restriction which is in the interest of the general public.  If an outsider  is introduced is a co-sharer in a property it will make common  management extremely difficult and destroy the benefits of  ownership in common.  The result of the law of pre-emption in  favour of a co-sharer is that if sales take place the property may  eventually come into the hands of one co-sharer as full owner and  that would naturally be a great advantage the advantage is all the  greater in the case of a residential house and s.16 is concerned with  urban property; for the introduction of an outsider in a residential  house would lead to all kinds of complications.  The advantages  arising from such a law of pre-emption are clear and in our opinion  outweigh the disadvantages which the vendor may suffer on account  of his inability to sell the property to whomsoever he pleases.  The  vendee also cannot be said to suffer much by such a law because  he is merely deprived of the right of owning an undivided share of  the property.  On the whole, it seems to us that a right of pre- emption based on co-sharership is a reasonable restriction on the  right to acquire, hold and dispose of property and is in the interests  of the general public."

  We are of the opinion that 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 04.10.2002.  The High Court while interfering with the

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interim orders dated 04.12.2001 has no right to set aside the final judgment of the  appellate Court dated 04.10.2002 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 \026  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. In the result, the appeals are allowed and  the common judgment and final order  dated 10.10.2002 passed by the High Court of Jammu & Kashmir in C.R. No. 231 of  2001 and C.R. No. 4 of 2002 is set aside.  No costs.