AZIZ DAR Vs. SONA DAR

JUDGEMENT

(1.) THIS case has been referred to the Full Bench in following circumstances.

(2.) HAJI Rishi Dar defendant No. 1 purchased land measuring 16 marlas under survey No. 146 Khewat No. 5/5 situate in village Chakpura Kalan on the basis of a Sale deed dated 27 -8 -61 registered on 15 -12 -1961 from Mst. Mukhti and others. Aziz Dar the plaintiff, claimed the suit property in exercise of the right of prior purchase. He arrived that he and the vendors were co -shares and the plaintiff besides haying right of way over the suit land was also an agnate of the vendors. The suit of the right of prior purchase was instituted in the court of Munsiff Hadgam on 13 -12 -1962. During the pendency of the suit but after 1 1/2 years of the original sale Haji Rishi Dar, the defendant vendee resold the suit land in favour of Qadir Dar, the brother of the plaintiff and his own sons Sona Dar and Ramzan Dar. The trial court dismissed the suit of the plaintiff on the ground that as the original vendee had resold the suit property to Qadir Dar and others and Qadir Dar had equal right of prior purchase with the plaintiffbeing the brother of the pre -emptor) therefore the latter who had no better title than that of Qadir Dar could not enforce his right of prior purchase as his right was defeated by the resale. The court also held that as during the pendency of the suit the suit property was sold by the original vendee to "Qadir Dar, the latter could not be compelled to ishare half of it with the plaintiff. The first appellate court upheld the view of the trial court and dismissed the appeal of the plaintiff.

(3.) THE plaintiffs right to claim the property in exercise of his .right of prior ,purchase is not seriously disputed before us rather the finding of the first appellante court on the point is in favour of the plaintiff. The learned District Judge in regard to this aspect of the matter, observed that it is in evidence that the heirs of Mst. Mukhti and Shahban original vendors ,are still living but the plaintiff being the cousin of these vendors has a right of prior purchase and so has his brother Qadir Dar. Not only the plaintiff claims the property on the ground of his being a co -sharer which has however been negatived by the courts below but also on the ground of his being an agnate of the vendors. The case of the plaintiff is covered by third category of sub -clauseb.of Sectipn 14 of the Right of Prior Purchase Act which vests right of prior purchase in the persons who but for such sale would on the death of vendor be entitled to inherit the land sold. However, both the courts below have dismissed the suit of the plaintiff on the ground that the vendee had resold the .property in favour of Qadir Dar in private recognition of his pre -emptive rights. Both courts have also held that this transaction is not affecved by the doctrine of his pendency.