Shelat, J. - (1.) Respondents No. 1 filed a suit in the Court of Additional District Judge, Jammu for possession of the house in dispute, owned by the second respondent and sold by her to the appellant. The cause of action pleaded was that respondent No. 1 had a right of prior purchase under Section 15 (fourthly) of the Right of Prior Purchase Art, 11 of 1993 as her house and the house in question had a common outer entrance within the meaning of that clause. The trial court and the High Court on evidence held that the two houses had a common outer entrance and decreed the suit on respondent No. I paying the sale price of Rs 13,000/--. Hence this appeal by special leave .
(2.) On behalf of the appellant, the vendee Mr. Misra raised two questions (1) that on a proper construction of S. 15 (fourthly) this was not a case of the two house having a common outer entrance as that clause requires that such an entrance must be owned jointly by the owners of such two houses, and (2) that Section 15 (fourthly) is ultra vires as it offends Art. 19 (1) (f) and constitutes an unreasonable restriction on the appellant's right to property.
(3.) The evidence shows that the entire property consisting of these two, together with other houses in' the vicinity were owned at one time by witness Mohinder Nath and one Uttam Chand. Subsequently they sold some of them. To give to these houses access to the public road, called the Secretariat Road, they retained to themselves the ownership of the lane but granted a right of way thereon to the said vendees. The lane ends as a blind alley where the two houses are situate. The plan produced during the trial shows that there is first a common outer entrance through which one enters into this lane from the Secretariat Road and at a distance of about 10 yards there is another such entrance marked 'common entrance' in the plan through which one enters into the alley and on which the doors of these and certain other houses open. During the course of the trial the trial Judge made local inspection and recorded his inspection note which was admitted by the parties as correct. The inspection note is as follows- "On spot I find that there is a common outer entrance from the street to number of houses and then again about 10 yards from the common outer entrance there is another common outer entrance of six houses and there is a street which ends at the houses of the plaintiff and the suit house. At the end of the street the outer door of the plaintiff and the suit house abut". There is thus no room for dispute that the said passage leading to the said Secretariat Road has two common entrances, one where it opens on to the said Road and the other at a distance of about 10 yards therefrom. Apart from the inspection note, the parties led oral and documentary evidence on a consideration of which the trial Judge recorded the following finding:- "Both the parties agree with this note and they admit that there is a common outer entrance from the Municipal Street to the plaintiff's house and the suit house. The difference between the plaintiff's case and the defendant's case .as made out by the counsel for the defendant is that the plaintiff's house and the defendant's house both open into the blank alley (kucha sarbasta) and into the same alley open some more houses The plaintiff has not shown that the alley was the private property of the owners of the houses which abut on that. According to the statement of Pt. Mohinder Nath that alley belongs to him and Pt. Uttam Chand. The owners of the houses which abut in that alley are entitled to right of way over it. As they are not owners of the alley so according to the counsel for defendant No. 1 the plaintiff is not entitled to right of prior purchase on the basis of their having a common outer entrance .....The words used in the sub-clause are that the property sold and the property on the basis of which the right is exercised must have a common outer entrance. It is not essential that the street which leads from outer entrance to the houses of the plaintiff and the defendant should be owned by them." The High Court also came to a similar finding and held that once it had been shown that the owners of the four houses abutting on that alley had exclusive right of way over it, it was enough to vest in them the right of pre-emption. The High Court also held that it was not necessary to prove that the Common outer entrance was jointly owned by the owners of the houses. It is therefore clear that the question raised by the appellant was not that there was no common outer entrance to the two houses but that on a proper construction of S. 15 (fourthly), such a common outer entrance would not give rise to a right of prior purchase unless the owner claiming such a right and the owner of the house in question. jointly own the common outer passage.;