WALI MOHD Vs. FAQIR MOHD

JUDGEMENT

(1.) THREE cases (1) Wali Mohammad Versus Faqir Mohammad and ors, L.P.A. No. 3 of 1968, (2) Ram Lal Versus Abdul Aziz and ors, civil second appeal No. 97 of 1971, and (3) Gaffar Ganai Versus Abdul Aziz, Civil second appeal No. 105 of 1972, have been referred to the Full Bench for an authoritative pronouncement on the question raised in these appeals.

(2.) WALI Mohamad Versus Faqir Mohamad is Letters Patent appeal against the judgment of Mr. Justice S. M. F. Ali (as his Lordship then was) partly allowing the appeal of the appellant which arose form the decision of the District Judge, Poonch in a suit relating to right of prior purchase. In this case, the plaintiffs -pre -emptors brought a suit for right of prior purchase on the ground that they were the tenants and, therefore, had preferential right to purchase the land in dispute. During the pendency of the suit, the defendant vendee improved his status by acquiring by gift a piece of land in the same khewat from the vendors. According to the vendee he became a co -sharer with the vendors and, therefore, claimed superior right as against the plaintiffs pre -emptors, thus defeating the right of the plaintiffs to claim the property in exercise of right of prior purchase. The suit was, however, decreed by the trial court as it held that the subsequent acquisition by gift of a piece of land in the Khewat would not improve the status of the vendees. The court relied upon an authority of this court reported in A.I.R. 1963 J&K, 11 (FB) wherein it is held that a co -sharer basing his claim as a co -sharer should be a co -sharer in the land sold i.e. in the same survey No. As the defendant vendee had acquired by gift the land not in the same survey No. but in the Khewat, therefore, he had not become a co -sharer and had not improved his position. The learned Single Judge also relied upon this authority and allowed the plaintiff to partly pre -empt the suit property. In the L.P.A. before the Division Bench it was argued that the view propounded in A.I.R. 1963 J&K was not correct exposition of law on the subject and, therefore, the view expressed in the said authority needed re -consideration. Further contention was raised that partial pre -emption was not permissible and therefore the suit could not be partially decreed. In this case land measuring 28 kanals was sold in favour of vendees for a consideration of Rs. 3,000/ -. The plaintiffs being protected tenants of 12 Kanals and 4 Marlas of land only claimed right of prior purchase in respect of this portion of land and not for the whole. Learned counsel who argued the case on behalf of the vendee relied upon a Division Bench authority of this court Lassa Baba Versus Gaffar Bhat reported as 1970 KLJ 57, in which the view has been laid down that unless a tenant is a tenant of whole of the property under sale he is not entitled to claim right of prior purchase for a part. This authority is against the rule of partial pre -emption. The Division Bench was of the view that substantial questions of law were raised before it and also doubt was expressed about the correctness of the view laid down in the aforesaid authority. Identical questions relating to partial pre -emption are also involved in the other two aforesaid cases viz Gaffar Ganai Versus Abdul Aziz and Ram Lal Versus Abdul Aziz and these cases have also been referred to the Full Bench. This is how the cases have come up before us.

(3.) IT may, however, be stated here that after the arguments in the cases were heard, Mr. L. K. Sharma for the appellant in Appeal No: 97 of 1971, Ram Lal Versus Abdul Aziz came with a statement that as the parties had entered into a compromise, therefore he did not press this appeal. As the learned counsel did not want judgment in the aforesaid appeal because of the compromise affected between the parties, therefore, This appeal is dismissed as not pressed.