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2023 DIGILAW 292 (JK)

Mohammad Ramzan Wani v. Aijaz Ahmad Bhat

2023-07-19

SANJAY DHAR

body2023
JUDGMENT : CR No.09/2023 1. The petitioner has challenged order dated 23.03.2023 passed by learned Additional District Judge, Srinagar, whereby application of the petitioner seeking dismissal of the suit filed by respondent No.1 has been dismissed. 2. It appears that respondent No.1 has filed a suit against the petitioner and proforma respondents for pre-emption under Section 20 of the Jammu and Kashmir Right to Prior Purchase Act (hereinafter referred to as “the Act”) seeking a declaration of the sale deed executed by proforma respondents No.2 to 6 (defendants No.1 to 5 before the trial court) in favour of the petitioner (defendant No.6 before the trial court) in respect of the property along with land measuring 10 marlas covered by Survey No.243 situated at Baghat Barzulla, Srinagar, as null and void. A further decree of mandatory injunction has also been sought by the plaintiff/respondent No.1 directing the defendants to execute the sale deed of the suit property in his favour. 3. In the suit, respondent No.1/plaintiff claimed that adjacent to his house, suit property belonging to defendants 1 to 5 is located and that the land and house of the said defendants form the servient property to that of the property/land of the plaintiff. It has been averred in the plaint the plaintiff had approached defendants No.1 to 5 to purchase the aforesaid property in view of the first right created in his favour under Section 15 of the Act but the said defendants declined to do so and have executed the impugned sale deed in favour of defendant No.6/petitioner herein. 4. It seems that an application came to be filed by petitioner/defendant No.6 before the trial court under Order VII Rule 11 of the CPC seeking rejection of the plaint on the grounds that the property involved is of commercial nature, as such, the suit is barred under Section 5 of the Act. It was also contended that the defendants being third purchasers of the suit property, as such, the plaintiff has no right to maintain the suit against them. 5. The aforesaid application came to be allowed by the trial court in terms of its order dated 28.01.2020 and the suit was dismissed on the ground that the plaint does not disclose any cause of action nor the plaintiff has laid a foundation of the facts to enforce the right of pre-emption under Section 15 of the Act. 6. 5. The aforesaid application came to be allowed by the trial court in terms of its order dated 28.01.2020 and the suit was dismissed on the ground that the plaint does not disclose any cause of action nor the plaintiff has laid a foundation of the facts to enforce the right of pre-emption under Section 15 of the Act. 6. The aforesaid order came to be challenged by the plaintiff/respondent No.1 by way of a Regular First Appeal bearing RFA No.12/2020 before this Court and vide order dated 13.05.2020 passed by this Court, the order of the trial court was set aside and the case was remanded to the trial court for deciding the matter on merits. In the meanwhile, the parties were directed to maintain status quo in respect of the suit property. While doing so, this Court observed that the contentions raised by the petitioner/defendant No.6 can be determined only after trial of the case and not at that stage. 7. It seems that after the case was remanded to the trial court, the defendants filed their written statement before the trial court wherein they raised a number of preliminary objections, one of which relates to maintainability of the suit. On merits, it was contended by the defendants that the suit property is located at a marginal distance from the property belonging to the plaintiff and it was specifically denied that the property of the plaintiff is dominant and that of the defendants is servient. It has been further submitted in the written statement that the grandfather of the plaintiff died in the year 1994 and that the suit property was sold by its original owner way back in the year 1969 to one Jagdesh Singh but the grandfather of the plaintiff did not challenge the transaction. It has been further submitted that Jagdesh Singh has sold the property to defendants No.1 to 5 in the year 1991 and at that time also, grandfather of the plaintiff was alive and he did not challenge the said transaction. On this ground it has been urged that it is not open to the plaintiff to challenge the sale deed executed by defendants No.1 to 5 in favour of defendant No.6/petitioner herein. 8. On the basis of the pleadings of the parties, the learned trial court, vide its order dated 09.04.2022, framed the following issues: 1. On this ground it has been urged that it is not open to the plaintiff to challenge the sale deed executed by defendants No.1 to 5 in favour of defendant No.6/petitioner herein. 8. On the basis of the pleadings of the parties, the learned trial court, vide its order dated 09.04.2022, framed the following issues: 1. Whether defendants 1 to 5 have/had land measuring 10 marlas within the old residential house constructed there upon quite adjacent to the house of the plaintiff falling under same Khasra No.243 as that of the plaintiff’s land with a common boundary wall bifurcating the suit property of the plaintiff and defendants No.5, which forms servient property to that of suit property of the plaintiff? OPP. 2. Whether the plaintiff’s property is ad dominant position while as the defendant’s property is sub-servient to the property of plaintiff? OPP 3. Whether plaintiff has preferential right to purchase the suit property under Section 15 of the Right to Prior Purchase Act? OPP 4. Whether earlier suit filed shall have no bearing upon the instant suit as the instant suit has been filed after execution of the sale deed? OPP 5. Whether the parties to the suit are co-owners and co-sharers to the suit property which is un-partitioned between the parties to the suit? OPP 6. Whether the suit property is shared by meets and bounds more than 53 years back before having properly partitioned with tin and separate entry gates as well and the said partition has been acted upon also since then? OPD. 7. Whether the plaintiff has no locus to maintain the suit property having no legal and valid title over the suit property? OPD 8. Whether suit is not maintainable as the right to pre-emption has been waived off by the original owner namely Aziz grandfather of the plaintiff while executing the first sale deed by Mohammad in favour of Jagdesh Singh and second in the year 1991 both of which were not challenged? OPD 9. Whether right of pre-emption/prior purchase is not applicable to the suit property as the same being urban immoveable property having two shops on main road? OPD 10. Whether the suit has not been property valued and requisite court fees has not been paid there upon; if so, whether suit is liable to returned in terms of Order 8 Rule 11 CPC? OPD 11. OPD 10. Whether the suit has not been property valued and requisite court fees has not been paid there upon; if so, whether suit is liable to returned in terms of Order 8 Rule 11 CPC? OPD 11. Whether the suit is not maintainable for want of deposit of 1/5th of consideration amount, amounting to more than 6 lacs, before filing the present suit? OPD 12. Relief? OPP/OPD 9. It seems that an application was made by petitioner/defendant No.6 before the trial court seeking dismissal of the suit on the ground that the same is not maintainable in view of the ratio laid down by the Supreme Court in the case of Raghunath (D) by LRs vs. Radha Mohan (D) through LRs & ors. (Civil Appeal No.1442 of 2016 decided October 13, 2020). In the application, defendant No.6 had essentially pleaded that as per the ratio laid down by the Supreme Court in the aforesaid case, the right of pre-emption can be enforced only the first time when the cause for such a right arises and in a situation, where plaintiff-pre-emptor chooses to waive such right, it operates as a bar on his exercising such right later on. It was further pleaded that since the property in question has exchanged hands as many as on two occasions prior to the execution of the impugned sale deed and since these transactions have not been challenged by the predecessor-in-interest of the plaintiff, as such, it is to be deemed that the plaintiff has waived his right to pre-emption and he cannot be allowed to exercise this right when a third transaction regarding the suit property has taken place. 10. The learned trial court while dismissing the aforesaid application of the petitioner/defendant No.6 has observed that an issue in this regard stands framed in the shape of issue No.8, and that the defendants have the obligation to produce evidence, documentary or oral, to prove that the plaintiff has either waived or surrendered or lost his right of pre-emption either by efflux of time or by his inaction or acquiescence or by his failure to challenge the earlier sale deeds. According to the learned trial court, without the parties having produced their evidence, assertion of the defendant No.6 that the plaintiff has waived or surrendered or lost his right of pre-emption regarding the suit property cannot be determined. According to the learned trial court, without the parties having produced their evidence, assertion of the defendant No.6 that the plaintiff has waived or surrendered or lost his right of pre-emption regarding the suit property cannot be determined. In short, according to the learned trial court, issue No.8 cannot be decided without trial of the case and that the same cannot be treated as a preliminary issue. 11. The petitioner has challenged the impugned order passed by the learned trial court, primarily, on the ground that there is material on record in the shape of pleadings before the trial court which clearly show that the predecessor-in-interest of the plaintiff has not challenged the sale of the property in question in favour of Jagdesh Singh and its subsequent sale by Jagdesh Singh in favour of defendants No.1 to 5. It has been submitted that this position is admitted by the plaintiff in his pleadings and the documents produced on record, as such, no trial is required to be undertaken for deciding whether the aforesaid conduct of the plaintiff and his predecessor-in-interest debars him from challenging the impugned sale deed. 12. I have heard learned counsel for the parties and perused the record of the case including the trial court record. 13. The controversy involved in this petition lies in a very narrow compass, inasmuch as the only question which is to be determined is whether or not the assertion of defendant No.6 that the suit property was sold by its original owner in the year 1969 to one Jagdesh Singh who thereafter sold the said property in the year 1991 to defendants No.1 to 5, is a fact admitted by the plaintiff. It is also to be seen as to whether assertion of defendant No.6 that predecessor-in-interest of the plaintiff has acquiesced in the aforesaid transactions of sale, is correct. If answer to these questions is in affirmative, then no triable question arises for the purpose of determination of issue No.8, otherwise the said issue has to be determined only after trial of the case. 14. If we have a look at the plaint filed by the plaintiff before the trial court, in para (4) it has been averred as under: “4. 14. If we have a look at the plaint filed by the plaintiff before the trial court, in para (4) it has been averred as under: “4. That denial on the part of the defendant no-1 to 5 to sell the property to the plaintiff and putting the defendant no-06 in possession of the property, the plaintiff filed a suit with a prayer for restraining the defendants 1 to 5 from selling the property to any other person, but during the pendency of the said suit the defendants 1 to 5 executed the sale deed in favour of the defendant no-06 which came to the knowledge of the plaintiff just 05 days back hence this suit, important to mention that during the proceedings in the court in the said suit the defendants never accepted to have executed a sale deed. since the relief had turned infractuous in the said suit and a fresh cause of action after the execution of the sale deed had accrued to the plaintiff therefore the plaintiff was advised to file the present suit the plaintiff has filed an application for with drawl of the said suit even otherwise the earlier suit will have no bearing upon the instant suit because the instant suit has been filed after the execution of the sale deed. copy of suit filed prior to this suit is appended as Annexure B and copy of the sale deed is appended as Annexure C.) 15. From a perusal of the aforesaid averments made in the plaint, it is clear that the plaintiff has admitted that prior to the suit, which is subject matter of the instant petition, he had filed a suit against defendants No.1 to 5 seeking an injunction that they be restrained from selling the property to any other person but during the pendency of the said suit, defendants No.1 to 5 executed the sale deed in favour of defendant No.6/petitioner herein. Respondent No.1/plaintiff has placed on record a copy of the plaint filed by him against defendants No.1 to 5 on an earlier occasion, as Annexure-B to plaint. It would be profitable to reproduce para (1) of the said plaint as under: That land covered by survey no 243 min measuring 3 kanals 15 marlas situated at Estate Baghat Barzulla Srinagar is joint and undivided between its various co- sharers, including the plaintiff. It would be profitable to reproduce para (1) of the said plaint as under: That land covered by survey no 243 min measuring 3 kanals 15 marlas situated at Estate Baghat Barzulla Srinagar is joint and undivided between its various co- sharers, including the plaintiff. The extract of Jamabandi prepared in 1968-69 which is in force on date shows that Sona and Ahas sons of Khazir Bhat jointly owned half of survey no 243 min by virtue of mutation po 701. Property of Sona Bhat has been mutated in the name of his wife Ashmi and seven sons namely Habib, Nabir, sattar. Aziz, Khalil. Ama and Mohammad. By virtue of mutation no 1273 Mohammad S/O Sona sold 10 marlas of land from the joint property in favor of Sardar Jagdesh Singh. The later sold it alongwith structure in favor of father of the defendants (now deceased). The property continues to be joint and undivided. The copy of Jamabandi and Girdawari are annexed herewith as Annexure-A & B. Needless to mention here that the landed property under survey no 243 min on the death of Aziz was inherited by his sons as tenants in common under Muslim Law. One of the sons of Aziz namely Abdul Majid also inherited part of the land as co-sharer and has gifted it in favor of his son, plaintiff herein. The plaintiff has acquired ownership rights as co-sharer in the said survey No. to the extent of 9 marlas of land by virtue of a gift deed executed by his father in his favor duly registered by Sub-Registrar Srinagar. The copy of gift deed is appended herewith as Annexure-C. The land under survey no 243 min till date thus continues to be undivided. The plaintiff and defendants by virtue of mutation/sale deeds/gift deeds have become joint owners of the survey number in dispute. (Emphasis supplied) 16. From the foregoing pleadings filed by plaintiff/defendant No.6 in an earlier suit, it is clear that he has admitted that the property in question was sold by the original owner Mohammad S/o Sona in favour of Sardar Jagdesh Singh who later on sold it to defendants No.1 to 5. This is a document produced by plaintiff/respondent No.1 and its contents have not been disputed by him. This is a document produced by plaintiff/respondent No.1 and its contents have not been disputed by him. Therefore, the plaintiff has admitted that the property in question, on an earlier occasion, was sold by the original owner in favour of Jagdesh Singh, who in turn sold it to defendants No.1 to 5. The observation of the learned trial court that this aspect of the matter can be decided only after trial of the case is, therefore, against the record. It is a settled rule of evidence that a fact which is admitted need not be proved. Therefore, in view of the pleadings and documents filed by the plaintiff before the trial court, it can safely be stated that he has admitted the existence of earlier transactions in respect of the suit property. 17. The only question that remains to be determined is as to whether or not the ratio laid down by the Supreme Court in the case of Raghunath (D) by LRs vs. Radha Mohan (D) through LRs & ors. (Civil Appeal No.1442 of 2016 decided October 13, 2020) is applicable to the facts of the instant case and if so, whether the suit is not maintainable. This is purely a legal issue in view of the admission of the plaintiff made in the pleadings and the documents produced on record. 18. The learned trial court by not treating issue No.8 as preliminary issue in the facts and circumstances of the facts, as indicated hereinbefore, has landed itself into error and has failed to exercise the jurisdiction vested in it. The impugned order passed by the learned trial court, therefore, deserves to be set aside. 19. Accordingly, the petition is allowed and the impugned order passed by the learned trial court is set aside and the case is remanded to the trial court with the direction to treat issue No.8 as a preliminary issue and decide the same after hearing the parties. While deciding the said issue, the trial court shall consider whether the ratio laid down by the Supreme Court in the case of Raghunath’s case (supra) is applicable to the facts of the instant case and if so, what is its effect on the maintainability of the suit. While deciding the said issue, the trial court shall consider whether the ratio laid down by the Supreme Court in the case of Raghunath’s case (supra) is applicable to the facts of the instant case and if so, what is its effect on the maintainability of the suit. The preliminary issue No.8 shall be decided by the trial court expeditiously, preferably within a period of one month from the date a copy of this order is made available to the said court. RFA No.17/2022: 20. Through the medium of instant appeal, the appellant has challenged order dated 09.04.2022 passed by learned Additional District Judge, Srinagar, whereby his application seeking permission to effect repairs on the suit property has been dismissed. 21. At the very outset, it is to be noted that the impugned order passed by the learned trial court is not appealable in nature in terms of Order 43 of the Civil Procedure Code, as such, the appeal is not maintainable. On top of it, the Registry has registered the instant proceedings as Regular First Appeal, which in any case could not have been registered as the appeal that has been filed is against an interim order. 22. However, without going into technicalities and in order to advance the cause of substantial justice, the instant appeal is treated as a petition under Article 227 of the Constituting and the Registry is directed to accord appropriate nomenclature to the same. 23. It seems that defendant No.6/petitioner had filed an application before the trial court seeking permission to effect repairs to the suit premises so that the same is made habitable. In the application, it was averred that the suit premises is in a dilapidated condition and if the same is not allowed to be repaired, it will be difficult for the applicant/defendant No.6 and his family members to reside therein. While praying for permission to effect repairs in the suit property, the applicant/defendant No.6 had relied upon the report of the Commissioner appointed by the trial court, who, in his report, has observed that the suit property is totally damaged and is not habitable. 24. While praying for permission to effect repairs in the suit property, the applicant/defendant No.6 had relied upon the report of the Commissioner appointed by the trial court, who, in his report, has observed that the suit property is totally damaged and is not habitable. 24. It seems that the aforesaid application was contested by respondent No.1/plaintiff on the ground that if defendant No.6 is allowed to effect repairs, it will change the character of the suit property and that it would amount to violation of order of status quo passed by this Court while rendering judgment dated 13.05.2020 in RFA No.12/2020. 25. The learned trial court after hearing the parties dismissed the application, primarily, on the ground that the order of status quo has been passed by the High Court, as such, if defendant No.6 is allowed to effect repairs to the suit property, it would amount to violation of orders passed by this Court. 26. Heard and considered. 27. A perusal of the record shows that this Court while deciding RFA No.12/2020 had passed a direction that status quo shall be maintained by the parties in respect of the suit property. Therefore, the trial court is right in observing that if defendant No.6/applicant is allowed to effect repairs to the suit property, it will amount to violation of the order of status quo passed by this Court. 28. Having regard to the nature of controversy involved and the plea raised by the petitioner/defendant No.6 before this Court that the suit property requires immediate repairs, it would be appropriate if such prayer of the petitioner/defendant No.6 is considered by the trial court on its merits after hearing the parties. To this extent, liberty needs to be granted to the trial court to modify the order passed by this Court, if need arises. 29. Accordingly, this petition is disposed of with permission to learned trial court to pass appropriate orders on the application of the petitioner/defendant No.6 in accordance with law after hearing the parties, notwithstanding the order of status quo passed by this Court.