ISHRI SINGH Vs. SUMITRA DEVI

JUDGEMENT

(1.) THIS is plaintiffs appeal against the judgment and the decree of the Honble Bhat J. dismissing their suit for possession of a vacant piece of land with shop and store described in the plaint on the basis of a covenant of Prior Purchase contained in the agreement dated 14.2.2001 (Bikrami) between Th. Sant Singh, the father of the plaintiffs appellants on the one hand and Th Ajab Singh father of the defendants -respondents Nos. 2 and 3 on the other.

(2.) THE facts which have given rise to the present appeal are: - Th. Ishri Singh and others brought a suit on the original side of this court avering that Th. Sant Singh, father of the plaintiffs appellants, of the pne .part and Th. Ajab Singh father of the defendant respondents Nos. 2 and 3 of the second part, had entered into an agreement on 14.2.20OI (Bikrami) Whereby they agreed with each other that in case any one of the contracting parties of their heirs wished to alienante any of their immovable properties by sale, the other party would have a preferential right of purchase of the property on payment of 25% less than the market, value thereof that if the other party refused to purchase the property the intending seller would be at liberty to sell it to any other person and that in case of default the party selling the property would have to pay 25% of the consideration money to the other party, that in breach of the aforesaid covenant Th. Govind Singh and Th. Kripa Singh defendants respondents Nos, 2 and 3 sold vide sale deed dated 8th June 1962 the property in question in favour of Shrimati Sumitra Devi defendant respondent No. 1 who was a complete stranger without giving the plaintiffâ„¢s even a notice in regard to the said sale and that the plaintiffs appellants had a preferential right to purchase the property in question under the provisions of the Right of Prior Purchase Act (Act 11 of 1993) in as much as the plaintiffs property was continguous to the property sold and as the plaintiffs property was dominant tenement and that of the defendants a servieent tenement. The plaintiffs also claimed a right of prior purchase on the basis of aforesaid covenant contained in the agreement dated 14 -2 -2001(Bikrami).

(3.) DEFENDANT No. 1 Smt. Sumitra Devi resisted the suit averring that she had no knowledge of the agreement set up by the plaintiffs appellants that the plaintiffs had no right of prior purchase in respect of the property sold as it was neither continguous to the plaintiffs property nor was the plaintiff property a dominant tenement and the property in question a servient tenement, that the agreement, if any was illegal and unenforceable as it violated the fundamental rights guaranteed under the Constitution of India and defeated the provisions of the Right of Prior Purchase Act and as it was also against public policy, and did not confer any right of preemption hue merely gave a right to sue for the of the purchase money which right was also not enforceable. It was further pleaded by defendant No. 1 that though the plaintiffs had no right of prior purchase in respect of the property in question yet to avoid legal complications they were asked to purchase the property before the sale in question took place and it was only after their refusal to accept the offer that the defendant No. 1 purchased the property, that the plaintiffs had waived their right if any, of prior purchase, that the suit was no a bona -fide one having been brought for the benefit of M/s Ram Chand, Ganesh Dass and Girdhari Lal with whom the plaintiffs - appellants ha entered into an agreement on 18 -10 -1962 where under M/s Ram Chand and ors were to finance the litigation and were to get the benefits of the decree that might be passed in favour of the plain tiffs -appellants, that previously the parties had sold portions of their lands to the municipality Jammu, but the alleged agreement was never in invoked which in any case showed that it was never acted upon.