Right Of Pre-emption Impinges Upon Constitutional Right To Property; It Can Be Defeated By Vendor By All Legitimate Means: Jammu & Kashmir and Ladakh High Court

The appellant approached the High Court challenging the judgement of the District Judge, Poonch (Trial Court), whereby the suit filed by the first respondent/plaintiff for right of prior purchase was decreed in her favour and a decree of possession of the suit property was passed against the appellant/first defendant.

The Single Bench of Justice Sanjay Dhar held, “As already discussed, the right of pre-emption is an extremely weak right. In fact, it impinges upon the constitutional right to property guaranteed to citizens of India and, as such, it can be defeated by a vendor by all legitimate means. In recognition of this position, the J&K Right to Prior Purchase Act stands repealed after the coming into force of the J&K Reorganization Act, 2019. In these circumstances granting a decree of possession of the suit property in favour of the plaintiff on the basis of her right of pre-emption at this stage would be grossly inequitable.”

Advocate K. L Pandita represented the Appellant while Advocate Mehrukh Syedan represented the Respondent.

Factual Background

The respondent/plaintiff had filed a suit against the petitioner and proforma respondent claiming right of prior purchase in respect of the property comprising a house and vacant piece of land situated in Poonch Town. The said property was purchased by the plaintiff from the predecessor-in-interest of the proforma respondents in terms of a sale deed. As per the case of respondent/plaintiff, she along with father of the predecessor-in-interest had jointly purchased the suit property for an amount of Rs 11,000. The plaintiff claimed that she came to know that the predecessor-in-interest of the proforma respondents was negotiating sale of his share in the aforesaid joint property in favour of the appellant 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 appellant.

The respondent /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, had right of prior purchase in respect of said property. 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. The Trial Court passed the impugned judgment and decree, whereby the right of prior purchase of the plaintiff in respect of the suit property was upheld. The Trial court on the basis of the evidence on record came to the conclusion that the property purchased by the plaintiff and predecessor-in-interest of proforma respondents was one single house/building and therefore, the plaintiff’s right of pre-emption was covered under clause secondly of Section 15 of the J&K Right of Prior Purchase Act.

Reasoning

The Bench, at the outset, noted that the right of pre-emption is a very weak right and it can be defeated by a purchaser of property by all lawful means, and it can also be waived by the pre-emptor by his conduct, which can be inferred from the facts and circumstances of a case.

On a perusal of the facts of the case, the Bench noted that when the plaintiff filed the suit for injunction, she was in knowledge of the fact that the appellant had purchased the said property. Her only assertion in the suit for injunction was that the appellant was trying to encroach upon her portion of the property. In the said suit she did not even make a whisper about her intention to enforce her right of pre-emption. Her only concern was that the appellant/defendant should not encroach upon her portion of property.

“This conduct of the plaintiff/respondent No. 1 allowed the appellant to believe that she had waived her right of pre-emption. In fact, there is evidence of record to show that the portion of the house which had been purchased by the appellant was demolished by him during the pendency of the suit for injunction, which has been admitted by the plaintiff in her statement. According to the plaintiff this prompted her to abandon her suit for injunction. This circumstance shows that by the conduct of the plaintiff, the appellant was made to believe that she has waived her right of pre-emption thereby prompting him to change the nature of the suit property”, it stated.

The Bench held, “From the aforesaid circumstances established from the evidence on record, it can safely be concluded that the plaintiff by her conduct had waived her right to pre-emption in respect of the suit property. The issue framed for determination in this appeal is decided accordingly.”

The Bench was of the view that it would be highly inequitable to grant a decree of possession of the suit property in favour of the plaintiff at a stage when more than 38 years had elapsed since the purchase of the suit property by the appellant, who had been in continuous occupation of the said property since then. “Asking him to vacate the said property by paying him a meagre sum of Rs.40,000/- that has been deposited by the plaintiff before the trial court, would result in grave injustice to the appellant”, the Bench stated.

Allowing the appeal, the Bench set aside the impugned judgment of the trial court. “The amount that has been deposited by the plaintiff/respondent No.1 with the trial court shall be refunded to her”, it ordered.

Cause Title: Iqbal Singh v. Durga Devi (Cause Title: CFA No.19/2001)

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