ASHOOR SOFI Vs. GHANI SOFI

JUDGEMENT

(1.) THIS is vendee -defendants appeal against a concurrent judgment of the courts below decreeing the plaintiffs suit for pre -emption. Both the courts have found that the plaintiff was holding the land sold as a tenant: and, concluded, that he had a preferential right to purchase the land as against the vendee -defendant who was merely an owner in the Mahal. In this the two courts have relied on section 14 of the Right of Prior Purchase Act as amended by Act No. XXIII of 1959. By virtue of Act No. XXIII of 1959, section 14 of the Principal Act was substituted by a new section. The old section 14 did not give a preferential claim to a tenant against an owner in the Mahal. The new section 14 has however brought about a vital change. It has put the tenant at the top and ranked his right superior to that of the owner in the Mahal. The amending Act came into force during the pendency of the suit which was instituted as far back as December 1957. The trial court assumed that section 14 as altered was applicable to the pending suits. The first appellate court tried to be more wise. It reasoned out the applicability of the new section to the pending suits on the basis of section 2 (3) of the Right of Prior Purchase Act, as originally enacted. In the result both the courts decreed the suit. Hence this appeal.

(2.) SECTION (2) of the Right of Prior Purchase Act as originally enacted reads: "(1) The pre -emption Regulation of 1977 is hereby repealed and the words right of prior purchase" shall be substituted for the word "pre -emption" wherever it occurs in any of the enactments at present, in force within the State. (2) Nothing in this Act shall affect the provisions of Order XXI, Rule 68 of the Code of Civil Procedure and section 60 of the Jammu and Kashmir Tenancy Act, 1980. (3) All suits, appeals and proceedings pending at the commencement of this Act shall, so far as may be, be governed by the procedure laid down in this Act."

(3.) CLEARLY sub -section 3 applied to suits, appeals and proceedings pending on the date of the commencement of the Right of Prior Purchase Act, as originally enacted. It has no application to the amendments brought about in the Act as originally enacted unless the amending Acts so provide expressly or by necessary implication. The view to the contrary taken by the first appellate court is therefore manifestly erroneous. That does not however clinch the controversy in the present case. The question still remains whether there is anything in Act No. XXIII of 1959 to suggest that new section 14 acts retrospectively in the sense that it applies to pending cases.