Per Muzaffar Hussain Attar, J. 1. Some litigations, like life, pose complex problems and seek their solutions. Such problems for their resolution require deep understanding and complete knowledge. Fallibility being inherit in human beings perfect results thus may elude. However, an honest, hard and dispassionate effort can cull out answer to such problems. The case in hand, facts whereof are given in brief narration, require an in depth dealing for its resolution. 2. Subhan Bhat and Ramzan Bhat were co-sharers of un-partitioned land. Asad Wani was tenant of Subhan Bhat in respect of some of his land. The appellants are successors-in-interest of Ramzan Bhat and for convenience will be referred to Ramzan Bhat. 3. Respondents 4 to 6 are successors-in-interest of Asad Wani and for convenience will be referred to Asad Wani. 4. Subhan Bhat executed sale deed in favour of Asad Wani in respect of land measuring 3 kanals and 4 marlas comprising of Survey No.165/19 (39,19/min) (hereinafter referred to as "Land") situated at Mangwaji Tehsil Budgam vide sale deed dated 31st of March 1958, which sale deed was registered on 13th April 1958. Ramzan Bhat instituted Civil Original Suit under the Jammu & Kashmir Right of Prior Purchase Act, 1993 (1936 AD), (for short Act of 1993) pleading therein that he having preferential right of prior purchase in respect of the "land", is entitled to a decree thereof against Asad Wani and Subhan Bhat. The suit was decreed by the trial court in faovur of Ramzan Bhat on 21st Dec. 1960. An appeal was filed against the said decree and judgment by Asad Wani. Suit was remanded by the first appellate Court on 31st March 1963. The suit was again decreed by the trial court vide its judgment dated 30th June 1970. The first appeal was dismissed by the first appellate Court on 30th Dec. 1972 and second appeal filed before this court was dismissed by the court vide its judgment dated 29th May 1986. The decree passed in favour of Ramzan Bhat, thus, attained finality. In the suit filed under the Act of 1993, initially seven issues were framed, but later on, on the application of Asad wani, one more issue was framed which reads as under:- "Whether the defendant No.1 was a tenant of the suit land long before the sale deed was executed. If so, what would be its effects on the suit ? If so, what would be its effects on the suit ? O.P.D" 5. On this issue, the trial court after scanning and appreciating the evidence recorded a finding that Asad wani enjoyed the rights of tenancy over one kanal and eleven marlas of "land". The said finding of the trial court remained un-altered even when the second appeal was dismissed by this Court. The decrees of the trial Court and first appellate Court ultimately merged into the decree and judgment of this Court dated 29th May 1986. During the pendency of the civil second appeal, in view of coming into force J&K Agrarian Reforms Act of 1976 (for short Act of 1976), the matter was referred by this Court to Collector concerned. The Collector concerned in its report dated 8th April 1984 which is part of the record of civil second appeal, opined that none of the parties was cultivating the "land" in kharief 1971 for the reason that it was put on the superdari by the civil court he further opined that whosoever will be declared to be the owner of the land will be deemed to be in possession in Kharief 1971, and the land will vest in such person under the Act of 1976. After passing of the judgment in civil second appeal, an application was filed by Asad wani before the Assistant Commissioner (Collector Budgam). From the order passed by Assistant Commissioner (Collector Budgam), copy whereof, is placed on the record of the appeal, it appears that Asad Wani had made the application praying therein for determination of tenancy rights under the Act of 1976. The Assistant Commissioner (Collector Budgam) dismissed the said application. An appeal came to be filed against the order of Assistant Commissioner (Collector Budgam) before the Joint Commissioner Agrarian Reforms Srinagar, which appeal was allowed by the said authority vide its order dated 19th May 1994. In terms of the order of the appellate authority, Asad Wani was held to got benefit of Section 4 and 8 of the Act of 1976. Being aggrieved of the said order of the appellate authority revision petition was filed before the J&K Special Tribunal, which suffered dismissal in terms of order dated 30th Dec. 1996. Writ petition registered as OWP No. 436/97 was filed challenging appellate and revisional orders which writ petition is dismissed by learned writ court vide its judgment dated 07th Sept. 2007. Being aggrieved of the said order of the appellate authority revision petition was filed before the J&K Special Tribunal, which suffered dismissal in terms of order dated 30th Dec. 1996. Writ petition registered as OWP No. 436/97 was filed challenging appellate and revisional orders which writ petition is dismissed by learned writ court vide its judgment dated 07th Sept. 2007. It is in this backdrop that this Letter Patent Appeal has been filed, praying therein for setting aside the impugned judgment and for allowing the writ petition. 6. We have heard learned counsel for parties at length and considered the matter. 7. Mr. A. Haqani, learned counsel for the appellants submitted that Asad Wani after having purchased the land from Subhan Bhat became the owner of the land, and his tenancy rights merged into the ownership rights. The learned counsel further submitted that Ramzan Bhat who succeeded in his pre-emption suit, accordingly, stepped into the shoes of Asad wani and was entitled to get ownership rights as well as possession of the land. The learned counsel further referred to the report of the Collector sent to this Court during the pendency of civil second appeal, and submitted that the Collector had categorically opined that in between the parties whosoever will be declared to be the owner by the court the "land" would vest in such person under the Act of 1976. The learned counsel would thus, submit that Ramzan Bhat having been declared to be the owner of the land in the pre-emption suit, he will be deemed, to be in possession of the "land". The learned counsel in support of his argument referred to and relied upon case titled Shah Mathurdas Maganlal and co. appellants v. Nagappa Shankarappa Malaga and ors respondents, reported in AIR 1976 SC 1565, case titled Nalakath Sainuddin appellant v. Koorikadan Sulaiman, respondent, reported in AIR 2002 SC 2562 and case titled Shobrajmal and ors petitioners v. Smt. Kamla Devi, respondent, reported in AIR 1977 Raj. 194. 8. Mr. G.A. Lone learned counsel for respondents 4 to 6 submitted that Asad Wani was the protected tenant, so his estate was a large estate in which after sale of the land, the lesser estate viz ownership rights merged. 194. 8. Mr. G.A. Lone learned counsel for respondents 4 to 6 submitted that Asad Wani was the protected tenant, so his estate was a large estate in which after sale of the land, the lesser estate viz ownership rights merged. The learned counsel submitted that the tenancy rights of Asad Wani were not thus affected by the purchase of the ownership rights in the land through registered sale deed, so the appellate authority under the Act of 1976 and the revisional authority have rightly held that rights of the protected tenant would be protected by the Act of 1976 and the orders of mutation u/s 4 and 8 of the Act have been rightly passed. The learned counsel further submitted that the impugned judgment is legal and valid, does not call for any interference. 9. Before we deal with the submissions of the learned counsel it will be apt to refer to the provisions of the relevant Statues. 10. Section 4 of the Act of 1993 refers to right of prior purchase, application of. The said section is reproduced as under :- "4. Right of prior purchase, application of The right of prior purchase shall mean the right of a person to acquire agricultural land or village immovable property or urban immovable property in preference to other persons and it arises in respect of such land only in case of sales, and in respect such property only in case of sales or of foreclosures of the right to redeem such property. Nothing in this section shall prevent a Court from holding that an alienation purporting to be other than a sale is in effect a sale." 11. Nothing in this section shall prevent a Court from holding that an alienation purporting to be other than a sale is in effect a sale." 11. Sub sections (5), (6) and (8) of Section 2 of the J&K Tenancy Act 1980 are reproduced as under:- "(5) "tenant" means a person who holds land, under the States, or under another person, and is, or but for a special contract in that behalf would be, liable to pay rent for that land, to the State or to that person; but it does not include- (a) an inferior landholder, or (b) a person to whom a holding has been transferred, or an estate or holding has been let on farm, for the recovery of an arrear of land revenue, or of a sum recoverable as such, or (c) a mortgagee of the rights of a landholder, (d) omitted; (6) "landlord" means a person under whom a tenant holds land, and to whom the tenant is, or but for a special contract would be, liable to pay rent for that land; (8) "tenancy" means a parcel or parcels of land held by a tenant of a land lord under one lease or engagement or one set of conditions, but may comprise land held by a tenant partly in right of occupancy and partly without such right;" 12. Section 54 of the Transfer of Property Act 1977, (1970 AD) defines sale and is reproduced as under :- "54. "Sale" defined "Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Sale how made Such transfer, in the case of tangible immoveable property or in the case of a reversion or other intangible thing, can be made only by a registered instrument. 13. On consideration of Sub Section (5), (6) and (8) of Section 2, it becomes writ large that a "tenant" means a person who holds land, under the State, or under another person, and is, liable to pay the rent for that land. "Land-lord" means a person under whom the tenant holds the land, and to whom the tenant is liable to pay the rent for that land. 14. Sub Section (8) defines tenancy to mean a parcel or parcels of land held by a tenant of land-lord under one lease or engagement or one set of conditions. 15. "Land-lord" means a person under whom the tenant holds the land, and to whom the tenant is liable to pay the rent for that land. 14. Sub Section (8) defines tenancy to mean a parcel or parcels of land held by a tenant of land-lord under one lease or engagement or one set of conditions. 15. A close examination of these provisions of law get manifested into one legal character that from land which is in ownership of the landlord, tenancy can be created, and the tenant holds such land under another person who in terms of the statute is the landlord. The tenancy right is thus, created from the rights exercised by the landlord over the land. The rights of the landlord over the land are basic rights from which tenancy rights are created. In common parlance tenancy owes its origin to the rights of the landlord over the land and the tenant thus derives interest in the land from the landlord. It is in fact from bossom of the land-lord tenant is born. The ownership rights of the land-lord over the land are thus, a large estate and the rights of the tenant over the land by virtue of owing its existence to the land-lord is a lesser estate. The land-lord is having reversionary rights which can be exercised in accordance with the provisions of statute or any contract existing between the land-lord and tenant which agreement, however, would be subject to any statutory limitations. Even on common sense approach, it does not stand to reason that a lesser or smaller thing can accommodate within it a greater or bigger thing. 16. We, therefore, do not subscribe to the view projected by Mr. G.A Lone learned counsel, that tenancy is greater estate and ownership is lesser estate which will merge into tenancy rights. 17. The Honble Supreme Court in case titled Shah Mathurdas on the basis of Section 111 of the Transfer of Property Act has ruled that if the lessor purchase the lessees interest the lease is extinguished as the same person cannot at the same time be both land-lord and tenant. In the said case the property which was under the tenancy of the tenant was mortgaged in his favour by the land-lord by execution of the mortgage deed. The mortgage deed provided that mortgagee will be in possession of the property from 7th Nov. In the said case the property which was under the tenancy of the tenant was mortgaged in his favour by the land-lord by execution of the mortgage deed. The mortgage deed provided that mortgagee will be in possession of the property from 7th Nov. 1953 on which date the tenancy would end. The mortgage deed was executed on 21st of May 1953. The Honble Supreme Court on facts stated two things in the said judgment, one that the mortgagees rights cannot merge into the tenancy rights as both are similar estate and it is only a lesser estate which could emerge into the greater estate; secondly, on facts it was held that the tenancy rights of the mortgagee had extinguished by mortgage deed from 7th Nov. 1953. In the said judgment it was further held by the Honble Supreme Court that in order to constitute merger of the lesser estate of the lessees interest must be in the whole of the property and should invest at the same time in one person and in the same right. The Honble Supreme Court in case of Nalakath has, held that a person cannot be an owner and sub lessee both at the same time. It was held that smaller estate of sub tenancy will sink or drown into larger estate of ownership as the two cannot exist. It was held that subtenant had acquired full ownership in the entire property and the right of reversion which vested in the original owners stood fully and entirely vested in the sub lessee who had purchased the whole property. It was further held that merger is founded on the principle that two estates, one larger and other smaller cannot co-exist, smaller estate in equity and, must in law sink or merge into the larger estate. 18. The Honble High Court of Rajasthan in Shobrajmals case on the basis of Shah Mathurdass case (supra) held that the tenancy rights of the appellant therein were extinguished as soon as sale in favour of tenant was complete which gave rise to the right of pre-emption to the pre-emptor. 18. The Honble High Court of Rajasthan in Shobrajmals case on the basis of Shah Mathurdass case (supra) held that the tenancy rights of the appellant therein were extinguished as soon as sale in favour of tenant was complete which gave rise to the right of pre-emption to the pre-emptor. It was held that at the date of accrual of the pre-emption rights the vendee possessed no tenancy rights on account of extinction of the tenancy rights, and the subsequent substitution of the name of pre-emptor in the sale deed cannot revive extinguished tenancy rights of the tenant, who had purchased property from the owner. 19. Even the provisions of Tenancy Act of 1980 would show that for being a tenant there has to be the landlord and the two expressions `landlord and `tenant connote two different meanings. The moment tenant purchases interest/reversionary rights of the landlord, in land he becomes the owner of the land, so ceases to be tenant of the land-lord. The relationship of landlord and tenant in such circumstances collapses by operation of the Statute and for contract for sale/agreement. 20. Mr. Haqanis contention that Asad wani lost the character of tenant, the moment he purchased the land from Subhan Bhat, his landlord, on the basis of the provisions of statute and law laid down by the Honble Supreme Court is correct. Asad wani, the moment the ownership rights of land of which he was tenant vested him, ceased to be tenant of the said land as owner of the land could not be the tenant of his own person. 21. In view of the above discussion in the facts of this case we have reached to conclusion that after purchase of the land through sale deed by Asad wani tenant from Subhan Bhat, his tenancy rights merged into his ownership rights. We have further arrived at the conclusion that Asad wani after purchase of the land from his landlord, ceased to be tenant of the land, as one person cannot be simultaneously tenant and landlord of the same land. 22. Now the question which arise for our consideration is as to which relief the appellants are entitled to. We have further arrived at the conclusion that Asad wani after purchase of the land from his landlord, ceased to be tenant of the land, as one person cannot be simultaneously tenant and landlord of the same land. 22. Now the question which arise for our consideration is as to which relief the appellants are entitled to. This question would have not cropped up, had the Asad wani be not a tenant of the part of land, he purchased from his landlord, but the landlord would have been owner in possession of the land, the rights and interests whereof, after the sale would completely vest in Asad wani. In such a situation Ramzan Bhat pre-emptor without any demur would be entitled to get the possession of the land also which he had pre-empted. 23. We, now refer to Section 4 of the Act of 1993, which provides that right of prior purchase shall mean the right of the person to acquire agricultural land or village immovable property or urban immovable property in preference to other persons and it arises in respect of such land only in case of sales. 24. Section 4 would thus confer right of prior purchase to acquire land in preference to other persons. This right of prior purchase has thus two facets, one that if a person is proposing to sell his immovable property then the person can exercise right of prior purchase in accordance with the statutory provisions of acquiring said immovable property in preference to the proposed vendee and if the sale is complete a person can exercise right of prior purchase to acquire the immovable property. From the perusal of the provisions of Act of 1993, what would emerge is that right of prior purchase is not right of re-purchase of property. The person who exercise the right of prior purchase and succeeds in that, only substitutes himself and steps into the shoes of the original vendee. The rights which the original vendee acquire under sale deed would thus vest in the person who exercises the right of prior purchase about the same immovable property. The person who exercise the right of prior purchase and succeeds in that, only substitutes himself and steps into the shoes of the original vendee. The rights which the original vendee acquire under sale deed would thus vest in the person who exercises the right of prior purchase about the same immovable property. The Honbe Supreme Court in case titled Bishan Singh and ors, appellants v. Khazan Singh and ors, respondents, reported in AIR 1958 S. C 838 has held that right of pre-emption is not a right to the thing sold but a right to the offer of thing about to be sold. This right has been called primary or inherent right. It has been further held that pre-emptor has secondary right or remedial right to follow the thing sold. This right was held to be a right of substitution and not of re-purchase. Para 7,8,9 and 11of the aforesaid Honble Supreme Courts judgment are reproduced as under:- (7) "Before attempting to give a satisfactory answer to the question raised, it would be convenient at the outset to notice and define the material incidents of the right of preemption. A concise but lucid statement of the law is given by Plowden J. in Dhani Nath v. Budhy, 136 Pun Re 1894 (A), at page 511, thus: "A preferential right to acquire land, belonging to another person upon the occasion of a transfer by the latter, does not appear to me to be either a right to or a right in that land. It is jus ad rem alienum acquirendum and not a jus in re aliena.. A right to the offer of a thing about to be sold is not identical with a right to the thing itself, and that is the primary right is to follow the offer to the pre-emptor. The secondary right is to follow the thing sold, when sold without the proper offer to the pre-emptor, and to acquire it, if he thinks fit, in spite of the sale, made in disregard of his preferential right." The aforesaid passage indicates that a pre-emptor has two rights: (1) inherent or primary right i.e., a right to the offer of a thing about to be sold and (2) secondary or remedial right to follow the thing sold. (8) Mahmood J. in his classic judgment in Gobind Dayal v. Inayatullah, ILR 7 ALL 775 at p. 809 (FB) (B), explained the scope of the secondary right in the following terms: "It (right of pre-emption) 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 vendees name were rubbed out and pre-emptors name inserted in its place." (9) The doctrine adumbrated by the learned Judge, namely, the secondary right of pre-emption is simply a right of substitution in place of the original vendee, has been accepted and followed by subsequent decisions. (11) That plaintiff is bound to show not only that his right is as good as that of the vendee but that it is superior to that of the vendee. Decided cases have recognized that this superior right must subsist at the time the pre-emptor exercises his right and that right is lost if by that time another person with equal or superior right has been substituted in place of the original vendee. Courts have not looked upon this right with great favour presumably, for the reason that it operates as a clog on the right of the owner to alienate his property. The vendor and the vendee are, therefore, permitted to avoid accrual of the right of pre-emption by all lawful selling the property to a rival pre-emptor with preferential or equal right. To summarize: (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 or 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 place. (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 place. (6) The right being a very weak right, it can be defeated by all legitimate methods, such at the vendee allowing the claimant of a superior or equal right being substituted in his place." 25. Asad Wani was substituted by Ramzan Bhat viz-a-viz the sale of the land in respect of which the sale deed was executed by Subhan Bhat in favour of Asad wani. Ramzan Bhat, in law would thus be entitled to get what Asad wani had obtained through sale deed from Subhan Bhat as in the capacity of pre-emptor he substituted Asad wanis interest in land. 26. It has been proved as a fact in the suit filed by Ramzan Bhat that from out of the suit land Asad wani was tenant of one kanal and eleven marlas of land. This fact is also reflected in the report of the Collector sent to the Honble High Court. Asad wani had thus purchased ownership rights/reversionary rights in respect of one kanal and 11 marlas of land which were in his tenancy and in respect of the other part of the suit land, viz one kanals and 13 marlas, Asad wani had purchased the ownership as well as right of possession of the suit land. 27. Asad Wanis name was reflected in revenue records as owner in possession of entire land in view of sale deed. Ramzan Bhat was shown to be owner in possession of entire land on the basis of decree passed in his favour. The fact remains that Asad wani was tenant of land only in respect of land measuring one kanal and eleven marlas. 28. On the doctrine of substitution Ramzan Bhat on the basis of his right of prior purchase which right got crystallized in his favour at the time of institution of the suit in the year 1958, thus became owner in possession of the suit land minus one kanal and eleven marlas of which only ownership rights /reversionary rights vested in him and tenancy rights continued to reside with Asad wani. The appellants would thus, be entitled to be in possession of the land as owners measuring one kanal and 13 marlas from out of the suit land. The private respondents 4 to 6 under the provisions of Agrarian Reforms Act would be owners in possession of land measuring one kanal and 11 marlas. Respondents 4 to 6 in terms of the provisions of J&K Agrarian Reforms Act 1976 are entitled to be declared as owners of land measuring one kanal and 11 marlas. 29. In view of above discussion with respects we do not subscribe to the view propounded by Honble High Court of Rajasthan in Shobrajmals case that the tenant loses his right of tenancy after purchase of reversionary rights from owner. 30. In view of the above discussion we, accordingly, set aside the judgment under appeal. The writ petition is ordered to be allowed in terms of this judgment. The orders impugned in the writ petition stand quashed. The parties would be owners in possession of land in terms of declaration made in this judgment viz appellants to be owners in possession of the land measuring one kanal 13 marlas and respondents 4 to 6 to be in possession of the land measuring one kanal eleven marlas for which orders under Section 4 & 8 of the Act of 1976 may be passed by appropriate authority. The appropriate authorities shall, accordingly, update the revenue records and put parties in possession in accordance with mandate of this judgment. Disposed of.