JABAR BHAT Vs. ASHMI

JUDGEMENT

(1.) THIS civil Second appeal arises out of a suit for the exercise of right of prior Purchase with respect to the sale of 7 Kanals 13 marlas of land in Khewat No. 38, comprising survey Nos. 820 -min, 4 Kanals 17 marlas No. 1736 -min, 1 kanal, No. 1716, 17 marlas and No. 1736 -min 19 marlas, situate in village Ludura Tehsil Sopore by Rehman Dar in favour of Jabar Bhat, Mohammad Bhat, Ali Bhat and Ahad Bhat for a consideration of Rs, 3,500/ - vide sale deed dated 10 -2 -1965 and registered on the same date. Mst. Ashmi plaintiff sought to pre -empt this sale on the ground that she and defendant No. 5 Rahman Dar vendor, descended from a common ancestor and she was a co -sharer in the land; that the defendants 1 to 4, the vendees, had no right as compared to her to purchase this land; that the sale price was only Rs. 1,500/ - The suit was resisted on various grounds, denying the right of the plaintiff to institute the suit and at the same time alleging waiver, payment of consideration of Rs. 3,500/ - and improvements. Later on during the pendency of the suit the original vendor Rahman Dar sold further four Kanals of land by means of a sale deed dated 23 -5 -1967 situate in the same village from the same Khewat No. 38 but comprising different survey No. 2231 for a consideration of Rs. 8,000/ - in favour of the same vendees and one Mukhta Bhat. The said sale deed was registered on the same date i.e. 23 -5 -1967.

(2.) A number of issues were raised by the trial court and after recording the evidence of the parties the trial court decreed the plaintiffs suit holding that the defendants vendees could not defeat the right of plaintiff, who was admittedly a co -sharer in the Khewat by purchasing four kanals of land from a survey number different from those from which the earlier land was purchased by them. This judgment was based on a Full Bench authority of this court reported as AIR 1963 J & K 11. The lower appellate court also held the same view and dismissed the appeal of the vendees by its order dated March 31, 1969. Against this decree of the lower appellate court, the vendees have come up in further appeal to this court.

(3.) WE have heard the learned counsel for the parties.