SUPREME COURT OF INDIA
J.C. Sehgal
Vs
Devi Dass
Appeal (Civil) 2713-14 of 2004
(S. R. Babu and A.R.Lakshmanan)
27/04/2004
DR. AR. LAKSHMANAN, J.
Leave granted.
These two appeals arise out of S.L.P.(C) Nos. 21469-21470 of 2002 and filed
against the judgment and final order dated 10.10.2002 passed by the High Court
of Jammu and Kashmir at Jammu in C.R. No.231 of 2001 and C.R.No.4 of 2002,
whereby the High Court dismissed the revision petition bearing C.R.No. 231 of
2001 of the appellant herein J.C. Sehgal and allowed the revision petition
bearing C.R.No.4 of p2002 filed by respondent No.1- Devi Dass. The short
background facts of the case are as under:
One Abdul Rouf Ahmed was the owner in possession of four rooms along with land
appurtenant thereto. One of the said rooms and some portion of the land was
given to one Raj Kumar on rent as tenant. The aforesaid Abdul Rouf Ahmed sold
the entire property to one Issar Dass. Respondent Nos.2 to 5 herein are the
legal heirs of the aforesaid Issar Dass. The tenant Raj Kumar accepted late
Issar Dass as his landlord and a fresh rent note was executed during 1967.
During the subsistence of the tenancy of the aforesaid Raj Kumar, late Issar
Dass divided the entire property in four separate portions. The portion under
the tenancy of aforesaid Raj Kumar was sold by plate Issar Dass to one Ved Paul
Gupta through a sale deed dated 20.3.1977 which was challenged by respondent
No.1 herein by way of pre-emption suit by taking recourse to the provisions of
J & K Rights of Prior Purchase Act. The sole ground taken in the suit was
that the property purchased by aforesaid Ved Paul was contiguous to the land
belonging to the plaintiff (respondent No.1) as the parnallas of his house were
flowing towards the property sold. However, the defendants in the suit did not
appear in the case and did not defend the suit filed by respondent No.1 herein.
During the pendency of the pre-emption suit, Ved Paul, who constructed on the
suit property, sold the same to one Shashi Kant vide sale deed dated 19.5.1978.
This fact was within the knowledge of the plaintiff/respondent No.1 herein. The
aforesaid Shashi Kant, in turn, sold the suit property to Raj Kumar who was
already in possession of the suit property pas tenant and continued to remain
as tenant till the property was purchased by him. Raj Kumar purchased the suit
property vide sale deed dated 1.7.1981. The trial Court, on the basis of the
evidence, passed a judgment on 13.12.1984 decreeing the suit, the copy of which
has been filed as Annexure-P/1. On 17.1.1998, the appellant herein purchased
the suit property from the aforesaid Raj Kumar through a sale deed for valuable
consideration. According to the appellant, he had no knowledge about the
pendency of the pre-emption proceedings or the order passed thereon. On
20.8.2000, respondent No.1 herein filed a petition for execution before the
trial Court. The trial Court vide its order dated 28.8.2000 issued a warrant of
possession. On coming to know of the execution proceedings, the appellant
herein filed an application raising various grounds under Order XXI Rule 58, 99
and 101 of C.P.C. and prayed for stay of the operation of warrant of
possession. The appellant further brought to the notice of the executing Court
that he has already challenged the decree in a separate suit and the same is
pending for consideration. On 19.12.2000, the appellant filed a separate suit
for declaration and perpetual injunction challenging the decree obtained by
respondent No.1 herein. The trial Court by its order dated 19.12.2000 granted
the temporary injunction and stayed the execution proceedings. Later the trial
Court by its order dated 13.11.2001 vacated the interim order granted on
19.12.2000. The trial Judge, by a separate order dated 13.11.2001, rejected the
application of the appellant filed under Order XXI Rule 58, 99, 101 read with
Sections 94 and 151 of the C.P.C. p(Annexure-P/3). The appellant preferred an
appeal before the Additional District Judge challenging the orders of the
sub-Judge, who vacated the temporary injunction. The IInd Additional District
Judge by his order dated 4.12.2001, granted interim order after hearing the
appellant herein. The appellant preferred a revision petition before the High
Court challenging the judgment of the sub-Judge dated 13.11.2001 against the
interim orders of the IInd Additional District Judge in the application filed
under Order XXI Rule p58, 99, 101 read with Section 94 and 151 of C.P.C.
Respondent No.1 herein also filed a revision petition before the High Court
against the interim orders of the IInd Additional District Judge. The District
Judge allowed the appeal and stayed the execution of the ex parte decree till
the final decision of the suit. The High Court took both the petitions for
hearing and by its judgment dated 10.10.2002 rejected the civil revision
petition bearing No. C.R.231/2001 holding that there is no merit in the
revision petition and allowed the revision petition filed by respondent No.1
herein bearing C.R.No.4/2002 in view of the dismissal of the revision petition
filed by the appellant herein. According to the appellant, the High Court
failed to consider that the revision petition bearing No.C.R.4/2002 filed by respondent
No.1 herein had become infructuous as the appellate Court disposed of the
appeal on 4.10.2002 itself and, therefore, nothing survives in it. Further,
respondent No.1 did not challenge the order dated 4.10.2002 passed by the
Additional District Judge. It was further submitted that the High Court did not
consider the various issues raised by the appellant in his revision petition.
Being aggrieved by the order passed in C.R.No.231/2001 and C.R.No.4/2002, the
above appeals have been filed. We heard Mr. Ranjit Kumar, learned senior
counsel appearing for the appellant and Mr. Gopal Jain, learned counsel
appearing for the respondents. Our attention was drawn to the relevant
pleadings filed in this case and the judgment and orders passed by the High Court
and the lower Courts and also to the annexures.Mr. Ranjit Kumar, learned senior
counsel appearing for the appellant, submitted that the High Court was not
justified in not considering the various pleas raised by the appellant as
available to him under Order XXI Rule 58, 99 and 101 of C.P.C. According to
him, the Courts below are not justified in rejecting the petitions on the
ground that the purchase of the suit property by the appellant was hit by
principles of lis pendens and whether the lis pendens is applicable to the
facts of the present case. It was further submitted that the High Court was not
justified in entertaining C.R.No.4/2002 filed by respondent No.1 herein
challenging the interim order which has become infructuous as the appellate
Court disposed of the appeal itself by its judgment dated 4.10.2002. He further
submitted that the Courts below have committed error in executing decree
against the appellant who was not a party to decree and the present decree was
passed on one-sided evidence only and that the Courts below are not justified
in not considering the fact that the decree holder voluntarily admitted and
accepted the appellant as tenant qua the property in question. Per contra, Mr.
Gopal Jain, learned counsel appearing for the respondent, submitted that the
water parnallas were fitted to the property long before the sale of the
property to the appellant. The water of parnallas passes through the property
of the appellant and that the order of the sub-Judge in the pre-emption suit
filed by respondent No.1, clearly takes into account the fact that the property
of respondent No.1 is in the vicinity of the house of the appellant and that
the parnallas fitted in the roof pass through the said property, therefore, it
is proved that the property of respondent No.1 is the dominant property and
hence respondent No.1 has a right of prior purchase under Section 15(5) of the
Prior Purchase Act. It was held that no notice of the sale of the property was
given to respondent No.1 even when he was ready and willing to offer the price
for the property. According to learned counsel appearing for the respondents,
the High Court has rightly held that the appellant cannot be said to have
improved his right by purchasing the property from Raj Kumar and the High Court
was further correct in holding that the improvement in status for the purpose
of Section 15(5) of the Prior Purchase Act can only be applicable to Raj Kumar
and the appellant having purchased the property from Raj Kumar cannot and would
not fall under Section 15(5) of the Prior Purchase Act. Argued further, learned
counsel submitted that the High Court was right in holding that once the order
in execution petition of the sub-Judge dated 13.11.2001 was upheld, it would
not be apt to give any further life to the interim order dated p13.11.2001
passed by the IInd Additional District Judge, Jammu. He further submitted that
the decree dated 13.12.1984 was not challenged and , therefore, attained
finality with the efflux of time and any argument regarding raising of
permanent structure etc. by the appellant cannot be sustained at the belated
stage.
Mr. Ranjit Kumar, learned senior counsel, drew our attention to the following
important events from the rejoinder affidavit:
(a) The respondent filed suit against Ved Paul on 19.5.1978.
(b) During the pendency of the suit, the suit property was sold to one Shashi
Kant.
The aforesaid suit property was again came to be sold to one Raj Kumar on
1.7.1981. However, none of these two subsequent purchasers were made parties to
the suit. The defendant-Ved Paul having sold the suit property did not
prosecute the suit.
(c) The suit of the respondent came to be allowed on 13.12.1984 ex parte.
(d) Though the suit was decided on 13.12.1984, the respondent decree holder did
not seek execution of the same for a considerable time (till 28.8.2000).
(e) In the meantime, the purchaser of the aforesaid suit property, Raj Kumar,
sold the suit property to the appellant herein on 17.1.1998.
(f) The respondent initiated execution proceedings only on 28.8.2000 seeking
execution of the order dated 13.12.1984.
(g) The appellant having come to know of the decree dated 13.12.1984 and also
the execution proceedings initiated by respondent No.1, the appellant made
application before the executing Court objecting to the execution. As the
executing Court cannot go behind the decree, the application was rejected.
(h) The appellant, in these circumstances, filed a suit for declaration and
perpetual injunction challenging the decree dated 13.12.1984. The trial Judge
granted interim stay. However on 13.12.1984, the trial Court vacated the stay.
(i) The appellant preferred an appeal against the order of vacating stay. The
IInd Additional Judge granted interim stay on 4.12.2001.
(j) The aforesaid interim stay was challenged by the respondent before the High
Court. During the pendency of the aforesaid proceedings, the Additional
District Judge passed an order dated 4.10.2002 and made the interim stay
absolute.
(k) The High Court, vide its impugned judgment, set aside the interim order
dated 4.12.2001 and also set aside the order dated 4.10.2002, and though the
order dated 4.10.2002 was not impugned before it.
(l) It is also a fact that the decree dated 13.12.1984 was ex parte and the
trial Court had no opportunity of considering the other side of story. The
trial Court allowed the suit ex parte in the absence of objections.
In reply to the preliminary submissions made by the counsel for the
respondents, learned senior counsel appearing for the appellant submitted that
the decree dated 13.12.1984 is ex parte decree and, therefore, the sub-Judge
relied upon the contentions of the plaintiff before him and that the appellant
herein has already filed a suit giving the complete facts of the case. It was
further submitted that respondent No.1 made false allegation about the
existence of his house and parnallas on the date of institution of the suit for
pre-emption. In fact, no house was in existence at the time of the suit during
1978 nor any house is existing even today on the portion of respondent No.1.
Hence, it was submitted that the ground of pre-emption by respondent No.1 had
no leg to stand in law and, therefore, respondent No.1 lost his right of prior
purchase with respect to the suit property. It was further submitted that the
appellant was not a party to the decree dated 13.12.1984 and defendant No.1,
who had already sold the suit property during the pendency of the suit has not
prosecuted the suit. Respondent No.1, who had the knowledge of the subsequent
sales had never taken steps to implead the subsequent purchasers. Hence it was
submitted that the appellant is entitled to file a suit and challenge the
decree and can also take all the pleas available to him.We have briefly set out
the facts of this case and also the contentions raised by the counsel appearing
on either side with reference to pleadings and documents and also with
reference to the proceedings before the Courts below. We shall now consider the
respective submissions. As already noticed, two civil revision petitions were
filed before the High Court , One was filed by the appellant herein, being C.R.
No.231 of 2001, against the order of the sub-Court dated 13.11.2001 whereby the
trial Court rejected the application of the appellant filed under Order XXI
Rules 58, 99 and 101 of the C.P.C. challenging the execution proceedings
pursuant to the decree dated p13.12.1984, which decree was put into execution
only in the year 2000 though the decree was of 1984. The second revision
petition being C.R.No.4/2002, was filed by respondent No.1 herein challenging
the interim order of the IInd Additional District Judge, Jammu dated 4.12.2001
passed in appeal preferred by the appellant under Order XXXXIII Rule 1(r) of
the C.P.C. These appeals are against the order of the learned sub-Judge, Jammu,
who had dismissed the prayer for injunction under Order XXXIX Rules 1 and 2
filed by the appellant herein in his suit, the suit having challenged the
decree dated 13.12.1984. The Additional District Judge, in appeal, passed an
interim order staying the execution proceedings. The High Court vide its
impugned judgment dismissed the civil revision preferred by the appellant
herein and allowed the civil revision preferred by respondent No.1 herein. The
decree that was challenged by the appellant in a suit was passed on 13.12.1984
in a suit for pre-emption filed by respondent No.1 herein under the provisions
of the J & K Right of Prior Purchase Act, 1936 (In short, "the
Act") wherein the plaint averments were:
ITALICS 0 $ (Emphasis supplied)
The suit was filed on 17.3.1978 wherein averment was to the aforesaid effect.
The provision of law as existing under the Act vide Section 15 thereof, as
amended in 1973, 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. Firstly in the co-sharers of such property, if any; Secondly where
the sale is of the site of the building or structure, in the owners of such
building or structure; Thirdly, where the sale is of property having a stair
case common to other properties, in the owners, of such properties; Fourthly,
where the sale is of property having a common outer entrance with other
properties, in the owners of such properties; Fifthly, where the sale is of a
servient property in the owners of the dominent property and vice-versa;
Sixthly, in the tenant occupant thereof." *
However, earlier, prior to 1973 amendment, stood as under:
"15: Persons in who right of prior purchase vests in Urban Immovable
Property. The right of prior purchase in respect of Urban Immovable Property
shall vest
Firstly, in the co-sharers of such property, if any;
Secondly, where the sale is of the site of the building or structure, in the
owners of such building or structure;
Thirdly, where the sale is of property having a stair case common to other
properties, in the owners, of such properties;
Fourthly, where the sale is of property having a common outer entrance with
other properties, in the owners of such properties;
Fifthly, where the sale is of a servient property in the owners of the dominant
property and vice versa;
Sixthly, in the owners of property contiguous to the property sold." *
Thus what appears to have been amended in 1973 is clause 'sixthly' only. It
would be seen that the suit had been filed in 1978 claiming pre-emption under a
law that existed prior to the amendment in 1973. After 1973, there is no
provision, as aforesaid, in the Act for an owner of a property contiguous to
the property sold to seek pre-emption. Thus the plaintiff asked for grant of a
decree under clause 'sixthly' of the un-amended Section 15 (as existed prior to
1973). However, the decree that was passed was on the basis of clause 'fifthly'
of Section 15 as would be found from paragraph of the judgment of the
sub-Judge, Jammu which reads as under:
"From the statement of the plaintiff, which is supported by as many as
four witnesses produced by him namely, PW 1 Amar Nath, PW 2 Pradeep Kumar, PW 3
Mast Ram and PW 4 Preetam Singh during the trial, who in one voice have stated
that the suit property is quite in the vicinity of the plaintiff's house and
the water of the parnalla fitted in the roof of the plaintiff's house passes through
the suit property, it stands proved that the plaintiff's house is the dominant
property to the suit property and as such the plaintiff has right of prior
purchase under Section 15(5) of Prior Purchase Act." *
Thus though the decree was sought on a non-existent provision of law, the Court
granted it on a provision which was not the case of the plaintiff-respondent
No.1. This decree was the subject matter of the challenge in two suits, one was
filed by Raj Kumar, the vendor of the appellant herein, seeking a declaration
that the decree passed by the Court of sub-Judge, Jammu, on 13.12.1984 in Civil
Suit No.177/78 be declared null and void and unexecutable. This suit is still
pending. Subsequently, the appellant herein also filed a suit being - File No. 48
- Civil Suit titled J.C. Sehgal vs. D.D. Abrol and Ors., praying for a suit for
declaration and permanent injunction on the ground that the decree is a nullity
as it had been passed without jurisdiction on a void clause of
contiguity-cum-vicinage and that it had been passed on the grounds of wilful
fraud, deception and misrepresentation of facts. It is important to state here
that the learned Sub-Judge, Jammu, in his order dated 13.11.2001 on the
application filed under Order XXI Rule 58 has noted at pages 51-52 in para 7 as
under:
"It is no doubt true that ground of prior purchase in respect of
vicinage has been repealed but the question is whether the decree dated
13.12.1984 passed by this Court was on the ground of vicinage or on the ground
mentioned in Section 15(5) of the Prior Purchase Act. A bare perusal of the
judgment dated 13.8.1984 reveals that judgment and decree has been passed in
terms of Section 15(5) of Right of Prior Purchase Act on the ground that
plaintiff's house is the dominant property to the suit property and the water
of the parnallas of the house of the decree holder passes through the suit
property. The contention of the learned counsel for the applicant that the
decree has been passed on the ground of vicinage is without merit. Though, it
has been mentioned in the suit as well as in judgment that suit property is
contiguous to the house of plaintiff, but by no stretch of imagination, it can
be said that decree has been passed on the ground of vicinage." $ *
[Emphasis supplied]
Thus, it is seen that though respondent No.1 had sought pre-emption on a non-
existent provision of law, as seen earlier, the Court granted such pre-emption
decree on another ground which had not been argued and thus the said decree was
the subject matter of challenge in the two suits, as aforesaid.
This apart, that if the decree which was sought to be executed, 16 years after
the decree of the year 1984 is executed in 2000, the appellant, who is in
possession, would be dispossessed from the property pending disposal of the
suit filed by the appellant, especially when such decree is sought to be
executed is a nullity on account of the fact submitted in the legal submissions
made. Learned counsel for the respondent, in fact, has fairly conceded at the
time of arguments by the respondent's counsel that the civil revision preferred
by the respondent herein was against the interim order passed by the IIIrd
Additional District Judge, Jammu, dated 04.12.2001 granting stay of execution
proceedings pending the suit of the appellant herein.
In that Civil revision, the High Court did not pass any stay order. The IIIrd
Additional District Judge went on to pass a final order in that appeal under
Order XXXXIII Rule 1 (r) on 04.10.2002 making the stay absolute pending the
suit of the appellant herein. This order dated 04.10.2002 was never challenged
before the High Court. These facts would be apparent from the judgment of the
High Court itself. It was contended before the High Court that how the order
could date 04.10.2002 be set aside when the same was not the subject-matter of
challenge before the High Court. The High Court, however, held as under:
"However, without commenting on this controversy so far as the above
aspect of the matter is concerned, to say that once a subordinate Court whose
interim order is subject matter of challenge decides a matter finally and that
should deprive this Court from pronouncing upon the correctness of proceedings
is an argument which cannot be sustained. By this process, a subordinate Court
cannot be given a handle to put the superior Court in a position which
disenables it from pronouncement upon the validity or correctness of an
order." *
It was submitted that the above finding is an erroneous finding of the High
Court as fairly submitted by the counsel for the respondent herein, inasmuch as
when the High Court did not stay the proceedings before the IIIrd Additional
District Judge and the order passed by the Third Additional District Judge was
not challenged or appealed against and only the interim order was appealed
against. The High Court ought not to have set aside the order dated 04.10.2002,
the final order passed by the Third Additional District Judge as has been done
by the High Court in the operative portion of its judgment.
In the instant case, respondent No.1 is seeking to enforce the right of
pre-emption which this court had held in several decisions to be a very weak
right. In Bhau Ram vs. B. Baijnath Singh, , this Court held at pages
740-741 as under:
"The question as to the constitutionality of a law of pre-emption in
favour of a co-sharer has been considered by a number of High Courts and the
constitutionality has been uniformly upheld. We have no doubt that a law giving
such a right imposes a reasonable restriction which is in the interest of the
general public. If an outsider is introduced is a co-sharer in a property it
will make common management extremely difficult and destroy the benefits of
ownership in common. The result of the law of pre-emption in favour of a co-sharer
is that if sales take place the property may eventually come into the hands of
one co-sharer as full owner and that would naturally be a great advantage the
advantage is all the greater in the case of a residential house and s.16 is
concerned with urban property; for the introduction of an outsider in a
residential house would lead to all kinds of complications. The advantages
arising from such a law of pre-emption are clear and in our opinion outweigh
the disadvantages which the vendor may suffer on account of his inability to
sell the property to whomsoever he pleases. The vendee also cannot be said to
suffer much by such a law because he is merely deprived of the right of owning
an undivided share of the property. On the whole, it seems to us that a right
of pre-emption based on co-sharers hip is a reasonable restriction on the right
to acquire, hold and dispose of property and is in the interests pof the
general public." *
We are of the opinion that the Courts below are not justified in executing
the decree against the appellant who was not a party to the decree. Likewise,
the High Court is not justified in entertaining C.R. No. 4 of 2002 which
challenges the interim order which has become infructuous as the appellate
Court disposed of the appeal itself by its judgment dated 04.10.2002. The High
Court while interfering with the interim orders dated 04.12.2001 has no right
to set aside the final judgment of the appellate Court dated 04.10.2002 which
has not been challenged before the High Court. # As already noticed, one
suit was filed by Raj Kumar, the vendor of the appellant herein seeking a
declaration that the decree passed by the Sub-Judge, Jammu, on 13.12.1984 in
Civil Suit No. 177/78 be declared null and void and unexecutable. The appellant
herein has also filed a suit being File No.48 - Civil Suit praying for a suit
for declaration and permanent injunction on the ground that the decree is a
nullity as it had been passed without jurisdiction on a void clause of
contiguity-cum-vicinage and that it had been passed on the grounds of wilful,
fraud, deception and misrepresentation of facts. During the pendency of the
suits if the decree which was sought to be executed 16 years after the decree
of the year 1984 the appellant who is in possession would be dispossessed from
the property pending disposal of the suits filed by the appellant. In the facts
and circumstances of the case, we direct the execution to remain in abeyance
pending disposal of the two suits one filed by Raj Kumar, the vendor of the appellant
herein and the other filed by the appellant herein being File No. 48 Civil Suit
Titled J.C. Sehgal vs. D.D. Abrol & Ors. and in the meanwhile the appellant
would not be dispossessed. This is especially in view of the fact that the
respondent No.1 is seeking to enforce the rights of pre-emption which Courts
have held in several decisions to be a weak right. # In the result, the
appeals are allowed and the common judgment and final order dated 10.10.2002
passed by the High Court of Jammu & Kashmir in C.R. No. 231 of 2001 and
C.R. No. 4 of 2002 is set aside.
No costs.