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2017 DIGILAW 265 (JK)

MAHTABA BEGUM v. SHAHID HUSSAIN

2017-05-30

ALOK ARADHE

body2017
JUDGMENT : 1. With the consent of learned counsel for the parties, both the two appeals were heard analogously and are decided by a common judgment. 2. For the facility of reference, facts from CIMA No. 5157 2012 are being referred to. In this appeal, the appellants have assailed the validity of the order dated 16.11.2012 passed by the Lower Appellate Court by which judgment and decree dated 04.02.2011 passed by the trial Court dated 04.02.2011 has been set aside and the matter has been remitted to the trial Court for decision afresh. 3. Facts giving rise to the filing of this appeal briefly stated are that respondent No. 2 has executed two sale deeds in favour of the appellants dated 22.03.2002 and 23.03.2002 in respect of land admeasuring 1 kanal, 17 marlas and 10 marlas respectively, forming part of Survey No. 523, Khata No. 1231 and Survey No. 3405. The respondent No. 1 claims to have a right of pre-emption in respect of the property covered under the aforesaid sale deeds. Respondent No. 1 filed two civil suits challenging the sale deeds executed in favour of the appellants herein on the basis of his right of pre-emption. During the pendency of the aforesaid two civil suits, by another sale deed dated 12.02.2004, the appellants purchased further land from Survey No. 3405. Thereupon, the respondent No. 1 filed the civil suit seeking relief of declaration and injunction in which challenge was made to the sale deed on the ground that the land purchased by the appellants from respondent No. 1 and out of which three marlas of land out of share of vender of the appellants (respondent No. 2) had received by respondent No. 1 under some family partition. 4. The trial Court by an order dated 04.02.2011 tried the issue with regard to maintainability of the suit as preliminary issue and inter alia has assailed that the suits filed by respondent No. 1 are not maintainable as during the pendency of the suits, the appellants have improved the title of the sale deed dated 12.02.2004 in respect of which mutation has been effected on these basis in their favour and the appellants have become co-sharers with the plaintiffs. 5. Being aggrieved, the respondent No. 1 filed an appeal. 5. Being aggrieved, the respondent No. 1 filed an appeal. The Lower Appellate Court by impugned judgment dated 16.11.2012 inter alia held that the issues which were tried by the trial court were not relating to a pure question of law but mixed question of law and facts and, therefore, the same could not have been tried as preliminary issues. It was further held that all the issues should be tried together. Accordingly, the Lower Appellate Court remitted the suits to the Sub Judge Kishtwar whether the suit challenging the third sale deed executed in favour of the appellants was pending. 6. Learned senior counsel for the appellants submitted that the factum of execution of the third sale deed during the pendency of the civil suits was admitted by respondent No. 1 and, therefore, the preliminary issue which was tried by the trial Court did not involve any adjudication of fact. It is further submitted that a Full Bench of this Court in the case of Jabar Bhat & Ors. v. Ashmi & Anr. has held that it is permissible for a party to improve the title during the pendency of the litigation and, therefore, the trial Court has rightly held, in view of enunciation of law by the Full Bench of this Court, that the suit is not maintainable. 7. On the other hand, learned counsel for respondent No. 1 has submitted that the third suit which was filed by the respondent No. 1 was dismissed as abated. Against the order of abatement, the respondent No. 1 filed an appeal, which was dismissed and the order passed by the appellate court is pending adjudication in OWP No. 98/2016. It is further submitted that in case third suit filed by the respondent No. 1 is revived, nothing would survive for adjudication in case the impugned order passed by the appellate court is allowed to stand. It is further submitted that the issue in question is mixed question of law and facts and, therefore, could not have been tried as preliminary issue, and issue, which, pertains to jurisdiction of the Court or bar created by the Statute alone can be tried as a preliminary issue. 8. I have considered the submissions made by learned counsel for the parties and have perused the record. A Full Bench of this Court in the case of Jabar Bhat & Ors. 8. I have considered the submissions made by learned counsel for the parties and have perused the record. A Full Bench of this Court in the case of Jabar Bhat & Ors. (supra) in paragraph 42, the relevant extract of which reads as under, has held as follows : "Therefore, from all these points of view in my opinion a survey number being a part of the Khewat, any transfer from any survey number makes the transferee a co-sharer in the entire Khewat upto the time of partition. It is of no consequence whether a transfer of land from one survey number along is made in favour of a transferee without including any share of the land comprised in the other survey numbers. The Khewat is joint, any portion of that Khewat in any survey number has the incidents of joint property and each co-owner is in the eye of law master of each parcel of that joint land and the transferee also becomes a co-owner or a co-sharer to the extent of his purchase." 9. Admittedly, during the pendency of the previous two suits filed by respondent No. 1, the appellants have purchased further land from Survey No. 3045 vide registered Sale Deed dated 12.02.2004. The aforesaid fact is not disputed, as is evident from the order passed by the Lower Appellate Court, the relevant extract of which reads as under: "However, transaction which took place during the pendency of suit is admitted by the plaintiff/appellant by challenging that transaction also in another suit and, therefore, no further evidence was required for the Court below at least as to the transaction having taken place between the defendants/respondents." 10. Thus on its own finding recorded by the Lower Appellate Court, it is evident that for trying the issue with regard to maintainability of the Civil Suits filed by respondent No. 1, no evidence was required to be led as, the factum of execution of third sale deed in favour of respondent No. 2 was admitted by respondent No. 1. Therefore, the aforesaid issue could have very well be tried as preliminary issue. In view of enunciation of law by Full Bench of this Court referred to supra, the suits filed by the respondent No. 1 are not maintainable and are rightly held to be so by the Trial Court. Therefore, the aforesaid issue could have very well be tried as preliminary issue. In view of enunciation of law by Full Bench of this Court referred to supra, the suits filed by the respondent No. 1 are not maintainable and are rightly held to be so by the Trial Court. The pendency of the third civil suit has no bearing so far as the fate of previously instituted two civil suits is concerned. 11. In view of preceding analysis, the impugned order dated 16.11.2012 passed by learned District Judge is hereby quashed. In the result, both the appeal is allowed.