KASHMIRI LAL Vs. JAGDISH RAJ

JUDGEMENT

(1.) THIS is plaintiffs first appeal against the decree of the learned District Judge, Jammu, dated December 31, 1968 whereby he has dismissed his suit for possession of a two storyed house consisting of five rooms, kitchen, and Dewdi with inner and outer compound stair -case, water tap etc. situate in Mohalla Pacci Dhaki, Jammu. It may be mentioned here that in the plaint the place mamely Pacci Dhaki, Jammu, where the disputed property is situate is not at all mentioned but this omission although betraying gross carelessness on the part of the plaintiff, is not material for the disposal of the case in so far as the parties knew quite well about the property they were litigating about. The plaintiffs case is that defendant No. 3 Durgadass was the sole owner of the suit property. The house of the plaintiff is situate to the South of the Property sold. Five windows three ventilators of the plaintiffs house open towards the house in dispute. In addition to this two water shoots open into the compound of the disputed house as also a Chimney and three chorkhas also open towards the disputed house. These windows and the ventilators have been there for more than twenty years and the plaintiff has a right of easement of air, light and discharge of rain water vis a vis the property sold. The defendant No. 3 in order to defeat the right of the plaintiff divided the suit property into two artificial and unnatural portions described in the sale deed. One portion of this property was sold to the defendant No. 1 for a consideration of Rs. 4,500/~ and the deed was registered on 22 -2 -1965, The remaining portion of the house consisting of two rooms and a compound and a staircase over which the plaintiff had a right of easement of air, light and dis -charge of water was transferred by means of a Benami mortgage deed registered on 22 -2 -1965 in favour of the defendant No. 2, the real nephew of Defendant No. 1 and the mortgage money mentioned as Rs. 4,000/ -. In fact the mortgage deed executed by defendant No. 3 in favour of defendant No. 2 has been brought into existence only to defeat the right of the plaintiff. The entire bargain is one, the consideration where for is Rs. 8,500/ -. The recital in the sale deed of payment of Rs. 3,500/ -having been received before the execution of the sale deed is all wrong. The market value of the suit property also is Rs. 8,500/ -, which was paid to the defendant No. 3 and the fictitious amount of mortgage money has been mentioned only to inflate the price. Two rooms which are the subject matter of the mortgage deed are not more than Rs. 1,000/ - in value. The sale deed and the mortgage deed having been registered on the same day and the mortgage deed being in favour of the nephew of the vendee coupled with the fact that the mortgage money is one -fourth of the sale price are proof of the fact that the mortgage in favour of the defendant No. 2 is a Benami transaction and the consideration thereof is really the sale consideration. On the above allegations the plaintiff claims a preferential right of purchase of the property and prays that a decree be passed in his favour on payment of Rs. 8,500/ -.

(2.) THE first two defendants have put in a joint written statement and the substance of that written statement is that the defendant No. 1 has purchased a certain portion of the disputed property, the owner of the remaining property is still defendant No. 3. Over the property sold by defendant No. 3 to defendant No. 1 the plaintiff has no right of prior purchase. The three ventilators and five windows alleged by the plaintiff open over that portion of the property which is the subject matter of the mortgage deed executed by defendant No. 3 in favour of defendant No. 2. Defendant No. 1 had contracted to purchase the entire building for Rs. 11,000/ - from defendant No. 3 but it was discovered that over a certain portion of the house in dispute, the plaintiff had a right of prior purchase and in order to save the property sold from the exercise of the right of prior purchase by the plaintiff, the defendant No. 1 by means of a sale deed dated 20 -2 -1965, registered on 22 -2 -1965 purchased only that portion of the property of defendant 3 over which the windows and the ventilators of the plaintiff did not open. The remaining property from the house in dispute was mortgaged by defendant No. 3 to defendant No. 2 by means of mortgage deed dated 21 -2 -1965 registered on 22 -2 -1965. Defendant No. 1 has purchased the mortgagees rights from defendant No. 2 by means of a document dated 13 -8 -1965 registered on 16 -8 -1965. The mortgage deed is a genuine document, is not a sale deed. The market value of the house is Rs. 12.000/ - and Rs. 8,000/ -has been fixed in good faith as the sale price of the property sold and similarly Rs. 4000/ - has been fixed bona fide as the mortgage money. The relationship of defendants 1 and 2 is admitted but it is stated that there has been no collusion between the defendants in the execution of the sale and mortgage deeds.

(3.) ON the pleadings of the parties, the following issues were framed by the trial court on 10 -1 -1967: - 1. Whether 3 ventilators and two windows of the plaintiffs house open on the suit house for the last more than 20 years and as such he has an easement right to entitle him to claim possession on the basis of right of prior purchase? O.P.P. 2. Whether the mortgage deed executed in favour of defendant No. 2 is in; fact a sale and as such the plaintiff can claim right of prior purchase with regard to this transaction? O.P.P. 3. In case issue No. 2 is proved whether the plaintiff is entitled to a decree for possession on the basis of right of prior purchase? O.P.P.