- (1.)THIS is a second appeal by the vendee of land measuring 1 Karal under survey Nos, 276, 277, 278 in Khewat No. 122 situate in Brari Nambal Tehsil Khas. The applicant Gaffar Wangoo purchased this land from one Abdul Aziz defendant No. 2 by means of a sale deed dated 4th Feb. 1962 registered on 12th Feb. 62 for a consideration of Rs. 2000. The plaintiff brought the suit stating that he had preferential right to purchase this land as against Gaffar Wangoo as he was a co -sharer in this land along with the vendor Abdul Aziz. It may be noted that the plaintiff Ghulam Qadir and Abdul Aziz are real brothers. A further plea was raised in paragraph No. 4 of the plaint that the vendor had transferred specific numbers from a joint holdings which he was not competent to do the land being undivided. The consideration alleged is only Rs. 1000 The defendant appellant raised a number of pleas. He asserted that he was the tenant of this land and as such he had preferential right as against the plaintiff. The trial Court struck a number of issues and after taking evidence of the parties decreed the suit on 27 -2 -65 in favour of the plaintiff holding that the vendee had paid Rs. 2000 as consideration. An appeal against this decree was preferred before the District Judge, Srinagar who dismissed the appeal by his order dated 30 -8 -1965. Hence the second appeal.
(2.)I have heard learned counsel for the parties. The appellants learned counsel has argued that the sale had been made by the sole owner of the property. The vendee is a tenant of some portion of this land and as such under the amended Right of Prior Purchase Act the vendee has preferential right of purchase as against the plaintiff -respondent. He has referred to S. 14 (a), Firstly. The learned counsel for the respondent has on the other hand argued that the sale is by a person who holds land jointly with the vendor and the tenant comes in Thirdly whereas the co -sharer comes in Secondly. The learned consel for the appellant has argued that the principle underlying the exercise of right of prior purchase cannot be the same as in a suit for cancellation of the sale. The plaintiffs learned counsel at the same time preferred a suit for pre -emption and challenged the sale also.
The vendor in this case has described himself as the sole owner of this property. The plaintiff must either accept that position or the suit is liable to be dismissed. The argument is no doubt ingenious but does not seem to appeal to me. I cannot take the averments in the sale deed as cent percent correct in the face and in the presence of other very important material indicating otherwise. To fully understand the facts of this case it is necessary to trace the history of the transaction leading to the sale These facts are not controverted but are borne out from the documents presented by the parties. It appears that on 30th January 1961 by means of a sale deed Smt. Gora Bhat and Pt. Narinder Nath Dhar sold 3 kanals and 17 Marlas of land from Khewat No. 122 min comprising of survey Nos. 351, 277, 278, 276, 273 in favour of Abdul Aziz Guffar Mir and Qadir Mir sons of Haji Subhan Mir in the following proportions : Abdul Az z one half and the remaining vendees one half in equal shares for a consideration of Rs. 3000 This means that after this transfer the owners of this property became Abdul Aziz to the extent of one halt and Guffar and Qadir Mir to the extent of the remaining half in equal shares. Out of this very land Abdul Aziz defendant -respondent transferred the disputed 1 kanal in favour of the appellant. It cannot, therefore, be denied that this one Kanal also is joint property of the plaintiff as well as of Abdul Aziz vendor and their third brother Qadir Mir. No partition of this land is either alleged or proved. From this it is obvious that Abdul Aziz was the owner of only half of this land. The hnd was joint and the survey Nos. also were joint. Before partition each individual co -sharar would be entitled to every inch and particle of this land and no co -sharer could say that he holds a particular portion out of the Land sold and the rest be given to other co -sharers. This is a proposition of law which is very settled and need not be commented upon. There are numerious cases of this Court, which need not be cited, because the point of law involved is very well settled now that in such cases the transfer will be upheld only to the extent of the share of the vendor in the property transfer -red which means if Abdul Aziz was the owner of one half of this land he could not claim any specific and well defined portion thereof. Under there circumstances his transfer would be only to the extent of his share i. e. one half. In this way the sale deed cannot be accepted as having transferred any property beyond one half of the land involved in this suit. The plaintiff also has taken this plea in this plaint as mentioned above vide paragraph No. 4 of the same. But no body has seriously followed this aspect of the case. There is no issue either on this subject. The normal course in such a case would have been to remand the case for further enquiry on this point but that would lead to protracted litigation and put the parties to unnecessary expense and inconvenience. I am baling this order of mine on admitted facts or I should say on the facts which are so glaring that there can be no dispute about the same. The result would be that only one half of the land sold i.e. only half a kanal could be the subject matter for which a decree should be passed in favour of the plaintiff preemptor, the remaining one halt could be deemed to have been not properly transferred. The result is that the appeal of the appellant succeeds to the extent of half of the property sold and the plaintiff respondent is entitled to a decree for possession on the ground of right of prior purchase only to the extent of half kanal in this land which is hereby passed in his favour. The lower Courts have held the consideration to be Rs. 2000. The consideration on payment of which the plaintiff respondent could get a decree will be Rs. 1000 only. If he has already deposited Rs. 2000 he is entitled to refund of Rs. 1000. As the parties have partly succeeded and failed in their cases, it is fit case in which the parties should bear their own costs.