J C SEHGAL Vs. DEVI DASS

JUDGEMENT

(1.) Leave granted.

(2.) 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 2002 filed by respondent No. 1-Devi Dass.

(3.) 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 late 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. and 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 as 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, Rules 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, Rules 58, 99, 101 read with Sections 94 and 151 of the C.P.C. (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, Rules 58, 99, 101 read with Sections 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.