AVINASH CHANDER Vs. SATYA DEVI

JUDGEMENT

(1.) WE have heard Mr. R.S. Thakur, learned counsel appearing for the appellant, as well as Mr. K.S. Johal, learned counsel for the respondents, in extenso.

(2.) THIS Letters Patent/Appeal is directed against the judgment and decree dated June 04, 1999 passed by learned Single Judge in CIA No.13/1979. By the aforesaid judgment and decree, the judgment dated 28 -02 -1979 of District Judge, Jammu in suit for possession on the basis of right of prior purchase, stood dismissed.

(3.) SETTING in facts of the case relevant for the disposal of this LPA in resuming are that, a suit for partition came to be commenced between appellants father and respondent -13, Dharam Dev, who happened to be the real brothers, in respect of a house, subject matter of the suit, and standing in their own ownership, was decreed by the District Judge, Jammu on 21 -11 -1964. By a registered deed of settlement dated 23 -2 -1970, appellants father transferred a portion of the house in favour of the appellant. Dharam Dev, respondent, also sold his portion of the house by means of a sale deed registered on 12 -10 -1970, to one Behari Lal afterwards, Avinash Chander, appellant, however, initiated a possessory action to enforce right of the prior purchase in respect of the house explictly delineated in the title of the complaint on the basis of easement of necessity. It was further contended by the plaintiff/appellant that the ventilators, doors of the partitioned house falling in the share of the plaintiffs/appellants father opened towards the house sold and provided not only the light and the air through ventilators and also access to his latrine by passing from door existing in his house over the roof of the house sold. It was further claimed that on account of this right of easement of necessity, the owner of the dominant property got the right of prior house purchase with regard to the servient house, i.e., the house sold.