GH AHMAD MIR Vs. AHAD

JUDGEMENT

(1.) THIS is a defendants second appeal in a suit for possession of 6 kanals and 14 marlas of land comprising survey No. 81 khewat No. 13 in village Bemu Tehsil Anantnag. The suit was for preemption arising out of the Right of Prior Purchase Act. The plaintiff claimed to pre -empt the property sold to the defendant vendee on: the ground that he was a cosharer of land sold and had therefore a preferential right to purchase the property as compared to the defendant vendee. During the pendency of the suit the defendant appeared to have taken gift of a moiety of a share in the land from another cosharer and thus improved his title which he suit up as a bar to the maintainability of the suit. The defendant also disputed the market price of the suit land. The trial court based its judgment on a Full Bench decision of this court in Siraj Din Vs. Karim Dar, AIR 1969 J&K and held that in view of the majority decision of the court it was not open to the defendant vendee to improve his title during the pendency of the Suit and therefore his defence was not tenable. Alternatively the learned Munsiff further held that since the defendant vendee had taken gift of a separate plot of land which was exclusively owned and possessed by his donor, he did not become a co -sharer in the entire khewat so as to acquire a superior or an equal title to that of the plaintiff pre -emptor.

(2.) AS the decision in Sirajdins case (Supra) was reconsidered by this court in Dhani Ram Vs. Mst. Bag Dai, Civil second appeal No. 93 of 1

(3.) 66, this appeal was also referred to a Full Bench and had to await the decision of that case which was given on 10 -9 -69. The view taken by the Munsiff was confirmed on appeal by the District Judge and hence this second appeal.