Decided on April 26,1999

FAZAL KHAN Respondents


- (1.) Applicant Yaqoob Khan, through this motion is praying for certificate that the judgment dated 30-1-1988 of Hon'ble Single Bench in Civil Appeal No. 9/75, is fit for appeal before a Division Bench of this Court, insofar as in absence of such leave, applicant is precluded to file 2nd Appeal in this case in terms of Clause 12 of the Letters Patent of this High Court. Alongside, an application for condonation of delay in filing the said application under Clause 12 of the Letters Patent Rules, read with High Court Rules, has been moved. A supplementary affidavit thereto is also available on record as part of grounds set out for condonation and prayer for issuance of the certificate in question. Objections have been filed by the otherside.
(2.) The counsel for the parties are submitting in unison that both matters are intermingled and form two facets of the same question. Accordingly, matter was heard in entirety.
(3.) It would be profitably to set out necessary facts and circumstances, required for our present purposes hereinbelow as :-The appellants purchased suit land measuring 1 kanal and 9 marlas in village Natipora Chanapora, Srinagar (more specifically referred in plaint and registered sale deed on 5-7-1961) from one Ghulam Khan. Respondents Yaqoob Khan filed the suit for prior purchase in respect of the land to claim the right of prior purchase on the ground of being tenant of the suit land and also being son of vendor's brother. The respondents preferential right of purchase on the basis of consenguinity or agnatic succession is recognised by Section 14(b) firstly and fourthly of the right of Prior Purchase Act of the State. On trial the suit was decreed after holding the plaintiff Yaqoob Khan as tenant and agnate of the Vendors. The vendee-defendants challenged the judgment and decree of the trial Court before the District Judge, Srinagar. The Appellate Court of Additional District Judge, Srinagar assigned with the case, upheld the decree of the trial Court on the ground of agnate succession of plaintiff being son of the Vendors brother. The ground of tenancy to claim prior purchase was given up before the said appellate Court. The defendant-respondent filed second appeal before the High Court. This Court found agnatic rule of succession and consanguinity as contained in Section 14(b) firstly and fourthly of the J. and K. Prior Purchase Act, as ultra vires the Constitution and therefore, dismissed the plaintiffs suit after allowing the second appeal.Plaintiff/appellant filed civil review (1/88) under Rule 51 of J. and K. High Court Rules of 1975. This review petition was dismissed on 4-4-1988. He thereafter filed this application under Clause 12 of the Letters Patent in terms of Chapter IX of the High Court Rules for certificate to enable the respondent-plaintiff to file L.P.A. against the said judgment dated 30-1-1988, of this Court.It may be noted that the suit for prior purchase was originally instituted before the trial Court on 30-8-1961, in respect of sale deed executed on 6-6-1961 and registered on 5-7-1961. The trial Court of City Munsiff decreed the suit on the grounds of tenancy and agnate succession on 22-10-1968. In first appeal, case was remanded to trial Court on 7-11-1970. However, in revision 110/1970, the High Court while confirming the order in appeal of Addl. District Judge dated 7-11-70, modified it to the extent that the Addl. District Judge, Srinagar was directed to determine itself if the plaintiff was entitled to any relief. When the Addl. District Judge, the appellate Court, took up the matter, the Agrarian Reforms Act had come into force. The Vendee took up the stand that the plaintiffs suit being essentially a suit for possession, therefore, Civil Court lacked the jurisdiction. However, the appellate Court found that as tenancy was not made out (as even conceded before that Court by otherside), therefore, the question of applicability of the Agrarian Reforms Act did not arise. The Addl. District Judge, Srinagar decreed the suit on the sole ground of agnatic succession of plaintiff to Vendor by its judgment dated 8-3-1975. It may also be noted that the question of tenancy was also taken up in the abovereferred civil review which review petition as already stated has been dismissed.;

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