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2000 DIGILAW 140 (JK)

Gurdeep Singh Anand v. Rakesh Kumar (Master)

2000-07-12

A.M.MIR, O.P.SHARMA

body2000
Per Sharma-J: 1. The appellant is the plaintiff. He is in possession of first floor of house No.126 situate in Gali Kali Jani, Jammu as a tenant. The owners of the house sold the entire house to respondents No. 1 and 2 vide sale deed executed and registered on 15-12-1980. The appellant filed a suit for possession of the portion in his occupation as tenant on the ground that he has preferential right under Section 15 of the Right of Prior Purchase Act. The trial court of the City Judge, Jammu, dismissed the suit holding that a suit for partial pre-emption is not maintainable because plaintiff had not claimed possession of stair case the only approach to the portion in his occupation. This finding was affirmed by the first appellate court holding that the appellants failure to seek possession of the passage and stair case leading to the premises in his occupation disentitles him to exercise the right of pre-emption. 2. This appeal u/s 100 of the Code of Civil Procedure was admitted to determine the following questions:- "1. What is the scope and ambit of the term Sixthly...." in the tenant occupant whereof existing in section 15 of Right of Prior Purchase Act? 2. Whether the term " in the tenant occupant whereof is limited to premises rented out to the tenant or includes other auxiliary rights or rights of tenancy? These questions have to be answered with reference to clause Sixthly of section 15 of Right of Prior Purchase Act which reads as under:- "15. Persons in whom right of prior purchase vests in urban immovable property. -The right of prior purchase in respect of urban immovable property shall vest.- 3. The dictionary meaning of the word "thereof is "on that or it". The word "thereof has been used in the context of urban immovable property only which includes a residential building. Ordinarily the expression "in the tenant occupant thereof if the sale is of urban immovable property which is in occupation of the tenant he will have right to pre-empt the sale. However, the question involved is whether the expression "in the tenant occupant thereof will have to pre-empt the sale as a whole even if he is in occupation of only part of the property sold and will be non-suited if he seeks possession of only that part which he occupies as tenant? However, the question involved is whether the expression "in the tenant occupant thereof will have to pre-empt the sale as a whole even if he is in occupation of only part of the property sold and will be non-suited if he seeks possession of only that part which he occupies as tenant? In Bishan Singh Vs. Khazan Singh Air 1958 SC 838 it has been held that- "(1). 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. (2). The pre-emptor has a secondary right or a remedial right to follow the thing sold. (3). 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. (4). It is a right to acquire the whole of the property sold and not a share of the property sold. (5). Preference being the essence of the right, the plaintiff must have a superior right to that of the vendee or the person substituted in his place." So it is a right of substitution and not a right of re-purchase. Accordingly, if it is held that he can pre-empt only that part which is in his possession it will result in absurd consequences such as partition of the premises which may not be possible if there is no separate entrance and passage. So if the sale is not of a house or other urban immovable property having common entrance the expression "in the tenant occupant thereof would mean the tenant in the property which is not capable of division and he will have right to pre-empt the sale as a whole and not the portion in his occupation only. Any other view will have result in an anomalous situation forcing the purchaser to keep the entrance common with the erstwhile tenant. If clause Sixthly is understood to mean introducing an outsider as a co-sharer it would destroy the benefit of ownership as observed by their lordships in Prem Dulari Vs. Any other view will have result in an anomalous situation forcing the purchaser to keep the entrance common with the erstwhile tenant. If clause Sixthly is understood to mean introducing an outsider as a co-sharer it would destroy the benefit of ownership as observed by their lordships in Prem Dulari Vs. Raj Kumar AIR 1967 SC 1578 which reads:- "Section 16 of that Act provided for preemption 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 preemption by co-sharers imposed reasonable restriction in the interest of the general public on the right under Article 19 (l)(f). If an outsiders 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 has a stair-case common with other properties stood practically on the same footing as that of co-sharers. Regarding street with other properties, the Court held that ground was similar to the first and the third ground." 4. As noticed above the sold premises is a compact house having common en trances from the street. Even the stair-case leading to the first floor which the appellant occupies as a tenant is from the ground floor. So if his right to pre-empt is restrained to the premises in his occupation, the owner/purchaser of the remaining portion will have always to be at the beck and call of the appellant to facilitate his entry to the house at his convenience. This will be against the object of legislation which is intended to exclude strangers from being co-sharers. So if his right to pre-empt is restrained to the premises in his occupation, the owner/purchaser of the remaining portion will have always to be at the beck and call of the appellant to facilitate his entry to the house at his convenience. This will be against the object of legislation which is intended to exclude strangers from being co-sharers. The whole dispute in our opinion turns on the meaning of the expression "in the tenant occupant thereof because if the word "thereof is referable to the property in the occupation of the tenant, it must be separate independent unit such as residential flat having independent access or passage and without anything common with the other portion of the property sold. So when the sale is of the property part of which is in occupation of the tenant but the entire premises have a common entrance, his right will extend to the whole of the premises sold and not part thereof. But if the premises in his occupation is an independent unit and the land in order to defeat the right of the tenant occupant combines the sale with his other property, the suit of the tenant occupant thereof will not be hit by the principle of partial pre-emption. This is necessary to avoid absurd and anomalous situation as noticed above. 5. However, the language of clause Sixthly is capable of two views, one which advances the object of the enactment and the other which leads to the result when such is the case the view which advances the object should be preferred. In N.T. Valuswami Thaver Vs. G. Raja Nainar & Ors. AIR 1959 SC 422 it has been observed that:- "It is no doubt true that if on its true construction, a statute leads to anomalous result, the Courts have no option but to give effect to it and leave it to the legislature to amend and alter the law. But when on a construction of a statute, two views are possible,, one which results in an anomaly and the other, not. it is our duty to adopt the latter and not the former, seeking consolation in the thought that the law bristles with anomalies." 6. But when on a construction of a statute, two views are possible,, one which results in an anomaly and the other, not. it is our duty to adopt the latter and not the former, seeking consolation in the thought that the law bristles with anomalies." 6. We have already found that it is possible to read the expression "thereof to the premises in occupation of the tenant as well as the property of which he is a tenant while former will result in anomaly if the premises in his occupation is not independent unit having independent access the latter view will advance the object of the legislation. Similarly Maxwell on the Interpretation of Statutes (12th Edition) page 228 observes as under:- "1. Modification of the language to meet the intention. Where the language of a statute, in its ordinary meaning and grammatical construction leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. This may be done by departing from the rule of grammer, by giving an unusual meaning to the particular words, or by rejecting them altogether, on the ground that that the legislature could no possibly have intended what its words signify, and that the modifications made are mere corrections of careless language and really give the true meaning. Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsmans unskillfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used. Lord Reid has said that he prefers to see a mistake on the part of the draftsman in doing his revision rather than a deliberate attempt to introduce an irrational rule, "the canons of construction are not so rigid as to prevent a realistic solution." Similarly in Halsbuarys Laws of England (4th Edition) in paras 856 to 858 a preposition as to how ambiguous provision is to be interpretated has been stated: "856. Ascertaining the intention of Parliament. The object of all interpretation of a written instrument is to discover the intention of the author as expressed in the instrument. Ascertaining the intention of Parliament. The object of all interpretation of a written instrument is to discover the intention of the author as expressed in the instrument. The dominant purpose in constituting a statute is to ascertain the intention of the legislature as expressed in the statute, considering it as a whole and in its context. This intention, and therefore, the meaning of the statute, is primarily to be sought in the words used in the statute itself, which must, if they are plain and unambiguous, be applied as they stand, however strongly it may be suspected that the result does not represent the real intention of Parliament. 857. Construction where statute is unambiguous. If the words of a statute are clear and uambiguous, they themselves indicate what must be taken to have been the intention of Parliament, and there is no need to look elsewhere to discover their intention or their meaning." 858. Construction where statute is ambiguous. If the words of a statue are ambiguous, the intention of Parliament must be sought first in the statute itself, then in other legislation and contemporaneous circumstances and finally in the general rules laid down long ago, and often approved, namely by ascertaining (1) what was the common law before the making of the Act, (2) what was the mischief and defect for which the common law did not provide, (3) what remedy Parliament resolved and appointed to cure the disease of the Common Wealth; and (4) the true reason of the remedy." 7. As noticed above the object of right of prior purchase being to exclude the stranger, same will be defeated if the right of a tenant is restricted on a portion in his occupation thereby creating a burden on the owner/purchasers of the other portion to keep the entrance and passage common with him. Appellant how ever, placed reliance on the Full Bench decision of this court in Wali Mohd Vs. Fiqur Mohd AIR 1978 J&K 92 wherein their lordships relying on a decision of the Board of Judicial Advisors, 3 Jammu and Kashmir Law Reports 210 held that where the plaintiff in a pre-emption suit can preempt whole of the property transferred by the sale deed on which the suit is founded, but limits his claim to part of the property only, his suit is liable to be dismissed. But where he is entitled to claim only part of the property, the suit is not open to objection on the plea of partial pre emption. After discussing the law laid down by their lordships of the Board of Judicial Advisors, Full Bench held as under:- "As indicated above, the principle has been settled by the Board that where the plaintiff in a pre-emption suit can pre-empt whole of the property transferred by the sale deed on which the suit is founded, but limits his claim to part of the property only, his suit is liable to be dismissed. But where the plaintiff is entitled to claim only part of a property in exercise of right of prior purchase and is prepared to pay the price payable in respect of that part, the suit is not open to objection on the score of partial pre-emption." However, this preposition has been laid down only with regard to the sale of agricultural land. The Full Bench in Dhani Ram Vs. Bhag Dei AIR 1970 J&K 72 (FB five Judges) while referring to the unsatisfactory drafting of sections 14 and 15 of the Act have made clear distinction in respect of the agricultural land and urban immovable property by observing as under:- "The wording of sections 14 and 15 is very unhappy and the drafting is extremely unsatisfactory. There is an apparent conflict in the two sections because in section 14 the words are "in respect of agricultural land and village immovable property." In section 15 again the words in respect of urban immovable property apparently include all sorts of property within the limits of a town whether it is agricultural, commercial or used for building purposes or otherwise. This unsatisfactory drafting is made all the more conspicuous by comparing the corresponding words in the definition clause in the Punjab Pre-emption Act, upon which our right of Prior Purchase Act is primarily based. In that Act while defining urban immovable property it is clearly stated that urban immovable property shall mean immovable property within the limits of a town other than agricultural land. The words other than agricultural land have been dropped in our definition, which has resulted in the present confusion. In that Act while defining urban immovable property it is clearly stated that urban immovable property shall mean immovable property within the limits of a town other than agricultural land. The words other than agricultural land have been dropped in our definition, which has resulted in the present confusion. But as has been elaborately discussed by my learned brother as well as by the Board of Judicial Advisors agricultural land has been held to have the same meaning as land defined in the J&K Alienation of Land Act, which definition has been reproduced by my learned brother in extense. That definition indicates and connotes that land is agricultural land which is occupied or let for agricultural purpose or purposes subservient to agricultural or for pasture. The intention of our legislature has been that agricultural land should be clearly differentiated from urban immovable property i.e. property which is situated in a town and apparently is not used for agricultural purposes. If this definition is not accepted, it would lead to certain anomalies and strange results. Agricultural land is a special kind of land which has its own incidents." After discussing the incidents of the transfer and the object of the provision, their lordships held that:- "26. Applying these tests to the two sections 14 and 15 of the Right of Prior Purchase Act, in my opinion, it would be only fair, reasonable and proper and to save anomalies and fantastic results that we understand from the expression agricultural land land as defined in the Alienation of Land Act, whether that land is situate in a village or a town and therefore, urban immovable property should be understood to mean immovable property in a town except agricultural land. This disposes of one of the points of controversy in the case." 8. So the question of partial preemption has been examined with reference to the agricultural land only because in all cases starting from Dharam Singh & Ors. Vs. Sita Ram & Ors. 3 JKLR 210, Dhani Ram Vs. Bhag Dei and Wali Mohd Vs. Fiqur Mohd (supra) the sale was in respect of agricultural land. This apart there is nothing in common between clause Firstly, and clause thirdly of section 14 with clause sixthly of section 15 because language used is entirely different. Vs. Sita Ram & Ors. 3 JKLR 210, Dhani Ram Vs. Bhag Dei and Wali Mohd Vs. Fiqur Mohd (supra) the sale was in respect of agricultural land. This apart there is nothing in common between clause Firstly, and clause thirdly of section 14 with clause sixthly of section 15 because language used is entirely different. As noticed above the object of conferring a right of prior purchase in respect of agricultural land was primarily to ensure that its nature is not changed by the purchaser, but it is not so in case urban immovable property is concerned. 9. Moreover, expressions used are entirely different. Therefore, the law laid down by the Full Bench in Wali Mohds case (supra) is distinguishable as it applies only in case of sale of agricultural land. There is yet another reason for this conclusion. In case of tenant cultivating the land his right to enter the land is regulated under the Common Land (Regulation) Act, 1956, but in case of urban immovable property right of passage is either easementary/ by necessity. So urban immovable property can not be treated in the same manner as agricultural land and this distinction has been well recognized by the Full Bench in Dhani Rams case (supra). 10. Therefore, our answer to the questions are as follows, (i) By the term "in the tenant occupant thereof we understand that if the tenant is in occupation of a portion of the building or any urban immovable property which has not independent access and the enjoyment of the property by the tenant is not possible without interfering with the enjoyment of the other portion of the sold property, word "thereof would mean the tenant will have to pre-empt the whole of the sale and not part thereof. However, in case the tenant is in occupation of the portion which has independent access having nothing in common with the other portion of the urban immovable property sold by the owner and can enjoy the same without interfering with the rights of the remaining portion he will have a right to pre-empt the sale to the extent of portion in his occupation and in such case suit will not be for partial pre-emption because he has no right with regard to remaining part of the property as held by the Full Bench of this court in Wali Mohd Vs. Fiqur Mohd (supra). Fiqur Mohd (supra). In the view we have taken the appeal must fall though on different grounds as noticed above. It is accordingly dismissed without any order as to costs.