FAZAL KHAN Vs. YAQOOB KHAN

JUDGEMENT

(1.) THE appellants purchased suit land measuring 1 kanal 0 marlass situate in village Natipora -Chanapora, Srinagar, from the Ghulam* Khan vide sale -deed registered on 5 -7 -1961 Respondents Yaqoob Khan sought to pre -empt the sale on the grounds that being the tenant of the suit land and also as son of the vendors brother, he had a preferentail right under Sec 14 (a) & 14 (d) firstly and fourthly, of the Right of Prior Purchase Act. The trial court decreed the Suit on both the courts, holding the plaintiff to be a tenant as well as agnate of the vendors. The vendees -defendants appealed against the decree to the District Judge, Srinagar. However, before the District Judge, it Was conceded on behalf of the plaintiff that he was not the tenant of the suit land. The fact was recorded by the appellate court but the appeal was dismissed and the suit decreed on the solitary ground v\z. the plaintiff being son of the brother of the vendor had the right to pre -empt the sale under Sec. 14 (b) firstly and fourthly, the defendant appellants herein have again questioned the legality of the findings recorded against them through this second appeal.

(2.) AS finding of fact recorded by the two courts below are neither perverse nor foolish, they do not require this court to reappraise the -entire evidence particularly when learned counsel for the appellants also did not contest the factual position. He, however, argued that the right of pre -emption on the ground of consanguinity or agnatic succession having been declared ultra vires the Constitution of India in Atam Prakash V. State of Haryana and others AIR 1986 S. C. 859 -while striking down Sec. 15 (b) of the Punjab Preemption Act to the extent it recognised such a right, the identical provision contained in Sec. 14 (b) firstly and fourthly of the Right of Prior Purchase Act (for short, the State Act) cannot survive on the test laid down by the apex court His contention is that clauses Firstly and Fourthly of Sec. 14 (b) of the State Act, on a parity of reasoning, are ultra vires the Constitution as under Article 141 of the Constitution of India, the law declared by the Supreme Court is the law of the land, the State having a different statute recognising a right which has been struck down vis a -vis statuate of another State, notwithstanding.

(3.) SINCE , the constitutionality of Sec 14 (b) of the State Act was called in question, a notice was issued to the Advocate General. Mr. M H. Beg has appeared in response to the notice and assisted the Court.