TARA CHAND Vs. MEHTA DURGA DASS

JUDGEMENT

(1.) THIS is an appeal from judgment and decree of the A. D. M Sub Judge, Jammu, in a pre -emption suit instituted by the respondents. The plaintiffs claimed right to pre -empt on grounds Fifthly and Sixthly of section 15 of the Right of Prior Purchase Act, 1993. In respect of the ground Fifthly of section 15 it was alleged in paragraph 2 of the plaint that for the pastabout 69 years the plaintiffs have been enjoying easement of light and air by means of the ventilators which opened towards the house sought to be preempted. Regarding ground Sixthly they averred that their house was contiguous to the suit house. The defendant denied the plaintiffs claim and resisted the suit.

(2.) THE trial Court framed issue No. 1 which is as follows : -

(3.) THE trial Court disposed of this most important issue in the case in a very brief manner devoting it to just about 11 type written sentences. The discussion merely stated that two respectable residents of Panjtirthi Mohalla where the suit house is situated have deposed that the ventilators of the house of the plaintiffs "opened on the side" of the suit house. The trial Court further pointed out "Ved Pal Assistant Engineer Municipality Jammu who also inspected the spot and prepared the site plan E x P. W. 1 verifies this fact." This statement was reinforced by the circumstances that the defendant himself had in his statement dated 16 -2 -1962 admitted the existence of these ventilators. Nothing more is contained in the judgement of the Court below on this point. We have been taken through the evidence in the case. We do not find the case of the plaintiffs that they have been enjoying easements of light and air for more than the statutory period prescribed by section 15 of the Easements Act established on the evidence. Nor is it possible to say that the plaintiffs have made out that they have acquired easement rights so as to make their house dominant property and the suit house servant property within the intendment of clause Fifthly of section 15 of the Right of Prior Purchase Act. Nor has the Court below approached the question from this necessary angle. This is a serious infirmity in the judgement of the lower Court. To some extent this appears to have been caused by the pleadings which cannot be said to be precise and clear. For this reason we are constrained to remit the case to the Court below for ascertaining whether the plaintiffs have acquired the easements -claimed by them and whether the suit house is servant property in relation to the adjacent house of the plaintiffs and for deciding in the light of this determination the question of the plaintiffs right to pre -empt the suit house. Both the parties will be entitled to amend their pleadings in respect of ground Fifthly of section 5 of the Right of Prior Purchase Act and in respect of acquisition by the plaintiffs of the easements of light and air and to adduce fresh and further evidence regarding issue No. 1.