KARAM KAUR Vs. TH DASS

JUDGEMENT

(1.) THIS civil second appeal arises out of the following facts. Santokh Singh the husband of the plaintiff - appellant sold 8 marlas of land in Poonch under Survey Nos : 935/937 in favour of the respondent -defendant Thakur Das by means of a sale deed dated 10 -10 -1964 for a consideration of Rs. 500/ -. Karam Kaur wife of the vendor Santokh Singh brought a suit based on the right of prior purchase against Thakur Dass. Various defences were raised by the defendant; among others he had stated that he was a tenant of this land before he purchased it and therefore by means of the amendment to the Right of prior purchase Act in the year 1959 he had a preferential right to purchase the land as against the wife of the vendor because the tenants right was superior to that of an heir in case the sale was by a sole owner of the property. This position is admitted by the learned counsel for the parties. Various issues were framed and ultimately the trial court of Sub Judge, Poonch, dismissed the suit of the plaintiff by means of his decree dated 10 -3 -1969. An appeal was preferred before the District Judge, Poonch, who also dismissed the appeal on 26 -11 -1969. Against this decree of the learned District Judge, Poonch, the present appeal has been filed in this court.

(2.) I have heard the learned counsel for the parties. Mr. Sehgal did not attack most of the findings arrived at by the courts below but his main contention was that when the tenant Thakur Dass purchased this land he became a full owner of the land and his tenancy merged in his ownership right in the result that he could not defend the suit. The doctrine of merger applied to this case. He referred to Section III (d) of the Transfer of Property Act which runs as under : - "A lease of immovable property determines. (b) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right : - - And argued that though section 117 of the Transfer of Property Act excludes agricultural leases from the operation of Chapter V (in which chapter section III falls) but the principle of Section III of the T. P Act has been made applicable to agricultural leases also In support of his argument he has referred me to AIR 1964 J & K 84 and AIR 1951 S. C 186.

(3.) IN AIR 1964 J and K 84 it was held that a sale by a sole occupancy tenant is not perceptible because on such a sale occupancy rights are completely extinguished His Lordship C J Wazir was comparing the provisions of the Right of Prior Purchases Act with those of the Tenancy Act and His Lordship held that the special provisions, contained in the Right of Prior Purchase Act overrides the general provisions of the Tenancy Act and further referred to the exception contained in Sub. Section (2) of Section 2 of the Right of Prior Purchase Act which excludes the Provisions ,of Section 60 of the Jammu & Kashmir Tenancy Act In the face of the express in -applicability of the Right of Prior Purchase Act to Section 60 of the J & K Tenancy Act, which deals with the transfer of occupancy rights by means of sale, mortgage or gift. I do not think this authority is at all applicable because here we have not the case of an occupancy tenant selling his rights to his Land -Lord but we have a case of simple tenant purchasing Land from his Landlord.