MAQBOOL SHAH Vs. SITARA

JUDGEMENT

(1.) THIS is a miscellaneous first appeal by the defendant against the judgment of the District Judge Poonch framing an additional issue in the case and remanding the same for a fresh trial to the trial Court. The appeal arises in the following circumstances.

(2.) THE plaintiff -respondent brought a suit for pre -emption by exercising his right of prior purchase under the Right of Prior Purchase Act on the land in dispute which was sold by Noor Hussain to the defendant -appellant Maqbool Shah for a sum of Rs. 800 by a registered sale deed dated 17 -1 -1964. Noor Hussain was the owner and proprietor of Khasra No. 567 consisting of 29 Kanals and 9 Marlas which was entered in the revenue papers as Kap land. By virtue of the sale deed (supra) half of the land was sold to the defendant -appellant. The plaintiff claimed that he was a co -sharer in the land sold and was therefore entitled to purchase it in preference to the purchaser.

(3.) THE suit was resisted by the defendant firstly on the ground that the plaintiff was not a co -sharer and secondly on the ground that the plaintiff had been offered sale of the land, but having refused to accept the same it was sold to the defendant. During the course of arguments before the trial court, an additional issue to the following effect was raised: - "Whether the plaintiffs suit was not maintainable as the sale was hit by S. 20 -B of the Big Landed Estates Abolition Act." The trial court after deciding this issue against the plaintiff held that the sale was void and the plaintiff was not entitled to any relief. The trial court accordingly dismissed the suit. The appellate court did not agree with the finding of the trial court and held that only such Kap land as is not culturable would fall within the mischief of S. 20 -B of the Big Landed Estates Abolition Act (hereinafter to be referred to as the Act), and as there was no issue on the point whether or not the land sold in the present case was culturable, it framed an issue on the point and remitted it to the trial court. Against this order, the defendant has come up in appeal before us.