JUDGEMENT

Vinod Chatterji Koul, J. - (1.)This is a civil 2nd appeal filed by the appellants (defendants) against the concurrent judgment and decree of the 1st Appellate Court dated 16.11.2012 and the judgment and decree of the trial court dated 31.05.2007 whereby the respondent-plaintiff's suit has been allowed and decreed. This appeal happens to have been admitted to hearing by the Court on 09.02.2015 read with order dated 17.06.2020 on the following two substantial questions of law raised by the appellants in the memorandum of appeal:
a) Whether it was not necessary for the trial court to frame an issue with respect to the specific averments of the appellants herein in the written statement that the respondent herein had waived, relinquished and forfeited the service of notice as required under right of prior purchase act having permitted the defendant no.2 to sell the land and as such his suit was not maintainable?

b) Whether while applying the law laid down by the apex court AIR 1986 SC 859 and the judgment of this Hon'ble Court, the trial court as well as the first appellant court have committed a legal error in allowing the respondents claim of right of prior purchase despite the clear evidence on record that the appellant no.2 herein was in exclusive possession of the suit land by virtue of a family partition which had taken place since the time of his forefathers?"

(2.)I heard learned counsel for the parties, perused the records and considered the matter.
(3.)The respondent (plaintiff) filed a civil suit for possession of land measuring 08 Marlas, comprising Survey no.1302/287, situated at village Barwal, Tehsil and District Kathua, on the basis of right of prior purchase thereto, sale whereof had been made by appellant no.2 vide sale deed dated 09.12.2002 in favour of appellant no.1. The respondent claimed and asserted right of prior purchase vis-a-vis the land in question on the ground that he and his brothers and appellant no.2 are owners and co-sharers of land measuring 1 Kanal comprising Survey no.1302/287 which included the suit land and that this position was reflected in the Jamabandi of the year 1968-69 and Girdawari for Kharief 2002. The respondent in this regard, in para 1 of his plaint, averred as under:
"1. That the plaintiff alongwith his brothers and the defendant no.2 are owners, co-sharers in land measuring 1 Kanal (16 marlas Warhal Awal and 4 marlas Aar Banna), comprising survey No.1302/287 situated in village Barwal, Tehsil and District Kathua, holding and possessing the same in equal shares and that they have been so reflected in the revenue record, which is evident from the copy of Jamabandi for the year 1968-69, copy of Khasra Girdawari for the year Kharif-2002 and pedigree table attached."

It was further pleaded by the respondent in the suit that appellant no.2, Chaggar Singh, without issuing any notice to him, made sale of 08 marlas out of the aforesaid land in favour of appellant no.1, who was a stranger - neither a co-sharer in the land, nor owner in the Mahal, for a sale consideration of Rs.16,000/-, and that to this effect a sale deed was executed by appellant no.2 in favour of appellant no.1 on 09.12.2002 which was registered by Sub-Registrar, Kathua on the same day. Consequent upon the sale, it was averred that appellant no.2 had delivered possession of the land in question to appellant no.1. It was further averred in the suit that the respondent had asked the appellants to admit his right of prior purchase and further asked appellant no.1 to hand over possession of the suit land to him on the basis of such right, but his requests in this regard were not acceded to. Hence the suit.

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