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PETITIONER: PREM DULARI

       Vs.

RESPONDENT: RAJ KUMARI

DATE OF JUDGMENT: 23/03/1967

BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. RAO, K. SUBBA (CJ) HIDAYATULLAH, M. BACHAWAT, R.S. VAIDYIALINGAM, C.A.

CITATION:  1967 AIR 1578            1967 SCR  (3) 273

ACT: The Right of Prior Purchase Act (J. & K. Act 11 of 1993), s. 15  (fourthly)-Scope of-Clause if violates Art. 19(1)(f)  of the Constitution.

HEADNOTE: The second respondent sold her house to the appellant.   The first respondent filed a suit for possession of the house on the  ground that she had a right of prior purchase under  s. 15  (fourthly)  of  the Right of Prior  Purchase  Act  1993, because,  her house and the house in question had  a  common outer  entrance within the meaning of that clause  The  suit was decreed.  In appeal to this Court it was contended that: (1) On a proper construct-ion of the clause such an entrance would  not  give rise to a right of pre-emption  unless  the owner  claiming  the  right and the owner of  the  house  in question  jointly owned the common outer entrance, and,  (2) the clause as interpreted by the Courts below violated  Art. 19(1)(f) of the Constitution and was therefore ultra vires. HELD:     (1)  The clause provides that where the We  is  of property   having  a  common  outer  entrance   with   other properties,  the Tight of prior purchase shall vest  in  the owners of such properties.  There is nothing in the  section to  warrant  the construction that such a right  would  vest only  if the common outer entrance is jointly owned  by  the owners of such houses. [275H] (2)  In the case of properties having a common entrance, the owners  of  the buildings would stand more or  less  in  the position  of  co-sharers  and the right  of  pre-emption  is sustainable as a reasonable restriction. [278E] Bhau Ram v. Baijnath, [1962] Supp. 3 S.C.R. 724, followed. Bishan Singh v. Khazan Singh, [1959] S.C.R. 878, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 524 of 1966. Appeal  by special leave from the judgment and  order  dated

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December  2,  1964 of the Jammu and Kashmir  High  Court  in Civil First Appeal No. 7 of 1964. B.   C.  Misra,  S.  K.  Mehta and  K.  L.  Mehta,  for  the appellant. M.   C. Setalvad and Mohan Behari Lal, for respondent No. 1. The Judgment of the Court was delivered by Shelat J. Respondent No. 1 Mod a suit in the Court of  Addi- tional District Judge, Jammu for possession of the house  in dispute,  owned by the second respondent and sold by her  to the  appellant.   The  cause  of  action  pleaded  was  that respondent No. 1 had a right of prior purchase under section 15 (fourthly) of the 274 Right of Prior Purchase Act, II of 1993 as her house and the house  in  question had a common outer entrance  within  the meaning of that clause.  The trial court and the High  Court on  evidence  held that the two houses had  a  common  outer entrance and decreed the suit on respondent No. 1 paying the sale  price of Rs. 13,000/-.  Hence this appeal  by  special leave. On behalf of the appellant, the vendee, Mr. Misra raised two questions  (1)  that  on  a proper  construction  of  S.  15 (fourthly)  this was not a case of the two houses  having  a common  outer entrance as that clause requires that such  an entrance  must  be owned jointly by the owners of  such  two houses, and (2) that section 15 (fourthly) is ultra vires as it  offends  Art. 19(1)(f) and constitutes  an  Unreasonable restriction on the appellant’s right to property. The  evidence shows that the entire property  consisting  of these  two, together with other houses in the vicinity  were owned  at  one time by witness Mohinder Nath and  one  Uttam Chand.   Subsequently  they sold some of them.  To  give  to these   houses  access  to  the  public  road,  called   the Secretariat Road, they retained to themselves the  ownership of  the lane but granted a right of way thereon to the  said vendees.   The  lane  ends as a blind alley  where  the  two houses  are  situate.  The plan produced  during  the  trial shows  that there is first a common outer  entrance  through which  one enters into this lane from the  Secretariat  Road and  at a distance of about IO yards there is  another  such entrance marked ’common entrance’ in the plan through  which one  enters into the alley and on which the doors  of  these and certain other houses open.  During  the  course  of  the trial, the trial Judge made local inspection and  recorded his inspection note which was admitted by the parties  as correct.  The inspection note is as follows :-               "On  spot I find that there is a common  outer               entrance  from the street to number of  houses               and then again about 1 0 yards from the common               outer  entrance there is another common  outer               entrance  of six houses and there is a  street               which ends at the houses of the plaintiff  and               the suit house.  At the end of the street  the               outer door of the plaintiff and the suit house               abut". There  is  thus no room for dispute that  the  said  passage leading  to  the  said  Secretariat  Road  has  two   common entrances,  one where it opens on to the said Road  and  the other at a distance of about 10 yards therefrom.  Apart from the  inspection note, the parties led oral  and  documentary evidence  on  a  consideration  of  which  the  trial  Judge recorded the following finding :-               "Both  the  parties agree with this  note  and               they  admit  that  there  is  a  common  outer

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             entrance  from  the Municipal  Street  to  the               plaintiff’s  house  and the suit  house.   The               difference  between the plaintiff’s  case  and               the defen-               275               dant’s case as made out by the counsel for the               defendant  is that the plaintiff’s  house  and               the defendant’s house both open into the blank               alley (kucha sarbasta) and into the same alley               opens some more houses.  The plaintiff has not               shown that the alley was the private  property               of  the  owners of the houses  which  abut  on               that.   According  to  the  statement  of  Pt.               Mohinder  Nath that alley belongs to  him  and               Pt.   Uttam Chand.  The owners of  the  houses               which abut in that alley are entitled to right               of way over it. As they are not owners of  the               alley   so  according  to  the   counsel   for               defendant No. 1 the plaintiff is not  entitled               to  right  of prior purchase on the  basis  of               their having a common outer entrance ....  The               words  -used  in the subclause  are  that  the               property sold and the property on the basis of               which  the  right  is exercised  must  have  a               common  outer entrance.  It is  not  essential               that   the  street  which  leads  from   outer               entrance  to the houses of the  plaintiff  and               the defendant should be owned by them". The High Court also came to a similar finding and held  that once  it had been shown that the owners of the  four  houses abutting  on that alley had exclusive right of way over  it, it was enough to vest in them the right of pre-emption.  The High Court also held that it was not necessary to prove that the common outer entrance was jointly owned by the owners of the houses.  It is therefore clear that the question  raised by  the  appellant was not that there was  no  common  outer entrance to the two houses but that on a proper construction of s. 15 (fourthly), such a common outer entrance would  not give  rise  to a right of prior purchase  unless  the  owner claiming such a right and the owner of the house in question jointly own the common outer passage. The  construction urged before the trial court and the  High Court  and  rejected by both of them was  once  again  urged before us by Mr. Misra.  The language of s. 15(fourthly)  is plain.   The section in unambiguous language  provides  that "the right of prior purchase.................... shall vest               Fourthly  :  Where  the sale  is  of  property               having  a  common outer  entrance  with  other               properties in the owners of such properties". The section clearly says that where the sale is of  property having  a common outer entrance with other  properties,  the right  of  prior purchase shall vest in the owners  of  such properties.  There is nothing in the section to warrant  the construction that such a right would vest only if the common outer  entrance  is  jointly owned by  the  owners  of  such houses.   What  the section requires is the existence  of  a common outer entrance which need not be owned by the  person claiming the right of pre-emption.  Whether L5Sup.Cl/67-5 276 there  is such a common outer entrance which  would  attract the  provisions of s. 15(fourthly) would, therefore,  depend upon  the facts proved in each case.  In the  present  case, both  the  trial court as also the High Court  came  to  the conclusion  from the evidence led by the parties that  there does  exist  a common outer entrance for  both  the  houses.

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Nothing has been shown by Mr. Misra from the evidence  which would justify our disagreeing with that conclusion. Let  us now turn to the decisions relied upon by Mr.  Misra. In  Naba  and others v. Piara Mal and another(1),  the  High Court  of  Punjab  held that the entrance to  the  alley  in question was not  ’a common entrance from the street’ of the pre-emptor   and  the  vendor  within  the  meaning  of   s. 13(1)(fifthly)  of  the Punjab Preemption  Act,  1905.   The decision, however, turned on the facts and the situation  of the  alley which was said to be the common entrance  to  the houses in question.  The High Court found that the  evidence led by the plaintiff was insufficient to prove that the said alley  was the private property of the owners of the  houses opening on to it or that none except the owners thereof  had free  access to or right of way over it.  Nor was  it  shown that  the  houses at one time constituted one  building  and were  subsequently subdivided and that the privacy of  those houses was ensured by the blind alley as it ordinarily would be by the existence of a common entrance.  In Nanak Chand v. Tek  Chand  and  others(2), the  right  of  pre-emption  was claimed  on  the ground that there was a step leading  to  a thara  which  formed part of the plaintiff’s house  and  the house in question.  The High Court held that the step  could not be called either a ’staircase’ or a common entrance from the  street within the meaning of s. 13(1)(fifthly)  of  the Punjab Preemption Act, 1905.  In Asa Nand v. Mahmud(3),  the dispute  was between two parties claiming the right of  pre- emption and the High Court rejected the defendant’s claim on the  ground that he had not even the right of way  over  the compound  and  his use of it was only  permissive.   In  Ram Chand v. Ram Jowaya (4 ), the Punjab Chief Court held that a public  street  leading  from the main road  to  two  houses cannot  be considered a common entrance from the street  and that  to bring a case within s. 1 3 (1) (fifthly)  it  would not  be sufficient to prove that the street into  which  the house sold and the house of the person claiming  pre-emption opened was common to the two properties or that each had  an entrance  from that street.  There must be an entrance  from the street which is common to both properties. None of these decisions, in our view, can assist, for,  each turned  on its own facts which determined whether there  was in  fact a common entrance within the meaning of the  Punjab Act. (1)  912) 44 P. R 159. (2)  A.I.R. 1927 Lah. 96. (2)  A.I.R. 192) Lah. 278. (4)  [1912] I.C. 484. 277 In the instant case, there is the admitted evidence that the alley, at the blind end of which the two houses are situate, has a common entrance which opens into a passage of about 10 yards  where there is again another common entrance  opening on  to the public road.  It is also not in dispute that  the entire passage is owned by the original owners of the houses opening into this passage and that at the time of the  sales of some of these houses they had granted a right of way over this passage to them so that the said houses may have access from  the public road.  The said passage, therefore, is  the private  property of the said Mohinder Nath and Uttam  Chand and  the right of way over it is enjoyed only by the  owners of the houses opening on to it.  The appellant did not raise any  dispute with regard to these facts.  Indeed,  the  only question  raised  by her was that in order to  constitute  a common outer entrance under s. 15(fourthly) such an entrance must be owned jointly by the owner of the house in  question

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and the owner claiming pre-emption.  As aforesaid, both  the courts  negatived  the suggested construction and  we  think that  they were right for the plain words of the section  do not justify such a construction. The  question next is whether s. 15(fourthly) providing  for the  right  of  prior purchase amounts  to  an  unreasonable restriction.   There can be no doubt that such  a  provision amounts  to  a  restriction  in  the  sense  that  a  person purchasing  such  a property has to give way to  the  person claiming such a right.  The nature of the right is expressed in  felicitous  language by Mahmood J. in  Govind  Dayal  v. Inayatullah(1).  The right of pre-emption, he observed : "is simply a right of substitution, entitling the pre-emptor, by means of a legal incident to which sale itself was  subject, to  stand in the shoes of the vendee in respect of  all  the rights and obligations arising from the sale, under which he derived  his title.  It is, in effect, as if in a sale  deed the  vendee’s  name  were rubbed out  and  preemptor’s  name inserted in its place".  This statement was approved by this Court  in  Bishan Singh v. Khazan Singh(2),  and  the  Court summarising the incidents of the right observed : "That  the right of pre-emption is not a right to the  thing sold  but a right to the offer of a thing about to be  sold. This  right  is called the primary or inherent  right.   The pre-emptor  has  a secondary right or a  remedial  right  to follow  the thing sold.  It is a right of  substitution  but not  of re-purchase, i.e., the pre-emptor takes  the  entire bargain and steps into the shoes of the original vendee". That  being  the nature of the right, the next  question  is whether  the restriction on the vendee’s right  of  property created   by  s.  15  (fourthly)  can  be  said  to  be   an unreasonable restriction.  A similar (1) [1885]1.L.R.7 All.775,809. (2) [1959] S.C.R. 878. 278 question  in regard to a similar provision in section 16  of the  Punjab  Pre-emption  Act, 1913 arose  in  Babu  Ram  v. Baijnath(1).   Section  16  of that Act  provided  for  pre- emption  on six grounds, the first, third, fourth and  sixth grounds  being  in favour of co-sharers,  owners  of  common staircases,  owners  of common entrance from  a  street  and owners  of  contiguous property.  The Court  held  that  the first,  third  and  fourth grounds of  pre-emption  did  not offend  Articles 19(1)(f) and 14 and were valid.  The  Court observed  that the law under the first ground providing  for pre-emption by co-sharers imposed reasonable restriction  in the  interest of the general public on the right under  Art. 19(1)(f).  If an outsider was introduced as a co-sharer in a property it would make common management extremely difficult and  destroy  the  benefits of  ownership  in  common.   The advantage  of  excluding  a  stranger  in  the  case  of   a residential house was all the greater as it would avoid  all kinds of disputes.  The third ground which applied in a case where  the property sold had a staircase common  with  other properties stood practically on the same footing as that  of co-sharers.   Regarding properties having a common  entrance from  the street with other properties, the Court held  that that ground was similar to the first and the third  grounds. At  page  741  dealing with the  fourth  ground,  the  Court observed  that the buildings were in a common  compound  and perhaps  were originally put up by members of one family  or one  group  with a common private passage  from  the  public street.   In such a case the owners of the  buildings  would stand  more  or less in the Position of  co-sharers,  though actually there might be no co-sharership in the house  sold.

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Such a case would approximate to cases of a common staircase and  co-sharers and, therefore, the right of  preemption  in such  a  case was sustainable.  The  reasoning  employed  in upholding the validity of the fourth ground in s. 16 of  the Punjab Act would apply with equal force to the provisions of s.  15(fourthly)  before us.  Consequently,  the  contention that  the  impugned  provision amounts  to  an  unreasonable restriction cannot be sustained. Both  the contentions raised by Mr. Misra fail.  The  appeal is dismissed with costs. V.P.S.                                                Appeal dismissed. (1) [1962]3Supp.S.C.R.724. 279