GAFFAR WANGOO Vs. GH QADIR MIR

JUDGEMENT

(1.) THIS is a second appeal by the vendee of land measuring 1 Karal under survey Nos, 276, 277, 278 in Khewat No. 122 situate in Brari Nambal Tehsil Khas. The applicant Gaffar Wangoo purchased this land from one Abdul Aziz defendant No. 2 by means of a sale deed dated 4th Feb. 1962 registered on 12th Feb. 62 for a consideration of Rs. 2000. The plaintiff brought the suit stating that he had preferential right to purchase this land as against Gaffar Wangoo as he was a co -sharer in this land along with the vendor Abdul Aziz. It may be noted that the plaintiff Ghulam Qadir and Abdul Aziz are real brothers. A further plea was raised in paragraph No. 4 of the plaint that the vendor had transferred specific numbers from a joint holdings which he was not competent to do the land being undivided. The consideration alleged is only Rs. 1000 The defendant appellant raised a number of pleas. He asserted that he was the tenant of this land and as such he had preferential right as against the plaintiff. The trial Court struck a number of issues and after taking evidence of the parties decreed the suit on 27 -2 -65 in favour of the plaintiff holding that the vendee had paid Rs. 2000 as consideration. An appeal against this decree was preferred before the District Judge, Srinagar who dismissed the appeal by his order dated 30 -8 -1965. Hence the second appeal.

(2.) I have heard learned counsel for the parties. The appellants learned counsel has argued that the sale had been made by the sole owner of the property. The vendee is a tenant of some portion of this land and as such under the amended Right of Prior Purchase Act the vendee has preferential right of purchase as against the plaintiff -respondent. He has referred to S. 14 (a), Firstly. The learned counsel for the respondent has on the other hand argued that the sale is by a person who holds land jointly with the vendor and the tenant comes in Thirdly whereas the co -sharer comes in Secondly. The learned consel for the appellant has argued that the principle underlying the exercise of right of prior purchase cannot be the same as in a suit for cancellation of the sale. The plaintiffs learned counsel at the same time preferred a suit for pre -emption and challenged the sale also.