WALI GANAI Vs. GH AHMAD GANAI

JUDGEMENT

(1.) TWO suits on the basis of the right of prior purchase were brought, by Ghulam Ahmad Ganai one against Wali Ganai and Rustum Ganai and the other against Wali Ganai and Mst. Nuri for possession of land measuring two kanals and 13 marlas under khewat No. 101 situate in village Dangarpura, and for 6 kanals under khewat No. 101 in Dangarpura respectively in the court of the Munsiff Sopore. In the first suit the plaintiff alleged the consideration of the sale dated 23 -7 -59,which was the subject matter of the suit, as Rs.300 against Rs.800 mentioned in the sale deed. Similarly in the second suit the plaintiff in Para (2) of the plaint stated that Rs.600 was the consideration of the - sale whereas the sale deed contained a recital of Rs.1500 as the purchase money. While some of the defendant were still being summoned in both the cases, the trial court of the Munsiff Sopore on 27 -9 -60 ordered the plaintiff to deposit Rs.160 and Rs.300 respectively in the two suits as l/5th of the sale price of the two plots under S. 21 (I) of the Right of Prior Purchase Act. The suits were adjourned from time to time till 12 -12 -60 for one reason or another. On 12 -12 -60 issues were framed in both the suits and then evidence of the plaintiff was ordered to be produced. On 8 -3 -61 an application was presented by the defendant in both the cases that as the deposit of l/5th of the sale price was not made by the plaintiff in either case, the suits should be dismissed. It appears that on 28 -11 -60 the plaintiff deposited Rs.60 in the first suit and Rs.120 in the other suit, this he did after calculating the probable value of the land as alleged by him in his plaints. When the defendant applied for rejection of the plaints of the plaintiff for non -deposit of the security, the plaintiff put in his objections on 23 -3 -61 in which he stated that he had deposited l/5th of the sale price and the market value of the land was also the same as had been mentioned by the plaintiff in his plaints. The trial court, after hearing arguments of the learned counsel for the parties, rejected the plaints of the plaintiff in both the suits on 29 -3 -61. Against that order two appeals were filed before the Sub -judge Baramulla who by his order dated 8 -12 -62 set aside the orders of rejection of the two cases and gave the plaintiff time up to the end of December 1962 to make up ¢ the deficiency and awarded costs of Rs.50 in each case against the plaintiff for his laches. In pursuance of this order of the appellate court, the plaintiff has paid the entire sums of Rs.300 and Rs.160 as ordered by the trial court. The defendant Wali Ganai has come up in appeals to this court. As the points of law involved in both the cases are the same, this judgment will dispose of both the appeals.

(2.) IN the first place we are doubtful whether an appeal lies. In an authority reported as A. I. R. 1955 NUC (Him. Pra. 2344 it was held under similar circumstances that no further appeal lay to the High Court on an order of remand passed by the lower appellate court in a case of this nature. Without deciding this point we can otherwise also treat these appeals as revisions. We have heard arguments on merits and shall dispose of both the cases on their merits.

(3.) IT has been argued by the learned counsel for the appellant that the right of prior purchase (preemption) is a very weak right and the relevant provisions of law on the subject should be strictly complied with and any dereliction on the part of the pre -emptor should be visited with the penalty that the law provides for such dereliction without trying to stretch or interpret the law in a liberal manner in favour of a pre -emptor. He has argued that the court had ordered the plaintiff in both the cases to deposit a particular sum within one month of its order on 27 -9 -60. The plaintiff failed to do so and in utter disregard of the orders of the court deposited Rs.60 and 120 according to his own sweet will and calculation long after the time fixed by the court for this purpose. The plaintiff has thus committed a double default firstly, he did not deposit the money in time and secondly, he did not deposit the entire sum directed by the court. In support of his contention the learned counsel for the appellant has drawn our attention to A. I. R. 1930 Lahore 567, A. I. R. 1925 Lahore 209 and A. I. R. 1923 Lahore 257.