PREM DULARI Vs. RAJ KUMARI

JUDGEMENT

(1.) Respondents No. 1 filed a suit in the Court of Additional District Judge, Jammu for possession of the house in dispute, owned by the second respondent and sold by her to the appellant. The cause of action pleaded was that respondent No. 1 had a right of prior purchase under Section 15 (fourthly) of the Right of Prior Purchase Art, 11 of 1993 as her house and the house in question had a common outer entrance within the meaning of that clause. The trial court and the High Court on evidence held that the two houses had a common outer entrance and decreed the suit on respondent No. I paying the sale price of Rs 13,000/--. Hence this appeal by special leave .

(2.) On behalf of the appellant, the vendee Mr. Misra raised two questions (1) that on a proper construction of S. 15 (fourthly) this was not a case of the two house having a common outer entrance as that clause requires that such an entrance must be owned jointly by the owners of such two houses, and (2) that Section 15 (fourthly) is ultra vires as it offends Art. 19 (1) (f) and constitutes an unreasonable restriction on the appellant's right to property.

(3.) The evidence shows that the entire property consisting of these two, together with other houses in' the vicinity were owned at one time by witness Mohinder Nath and one Uttam Chand. Subsequently they sold some of them. To give to these houses access to the public road, called the Secretariat Road, they retained to themselves the ownership of the lane but granted a right of way thereon to the said vendees. The lane ends as a blind alley where the two houses are situate. The plan produced during the trial shows that there is first a common outer entrance through which one enters into this lane from the Secretariat Road and at a distance of about 10 yards there is another such entrance marked 'common entrance' in the plan through which one enters into the alley and on which the doors of these and certain other houses open. During the course of the trial the trial Judge made local inspection and recorded his inspection note which was admitted by the parties as correct. The inspection note is as follows-