Claimant Must Prove Subsisting Pre-Emption Right Until Passing Of Decree, In Any Other Cases Such Right Cannot Be Said To Subsist: J&K High Court

A bench of Justice Vinod Chaterjee Koul added,

“The pre-emptor, claiming the right to pre-empt the sale on the date of the sale, must prove that such right continued to subsist till passing of decree of the first court and if the claimant loses that right or a vendee improves his right equal or above the right of the claimant before the adjudication of suit, the suit for pre-emption must fail”.

Background:

The case involved appellant Roop Singh challenging the judgment and decree dated March 19, 2019, passed by the Principal District Judge, Kathua whereby his suit for declaration of his right to prior purchase of land in Kathua, which was sold by Hira Singh to the respondents through a sale deed had been dismissed.

The appellant Roop Singh, represented by Mr. Abhishek Wazir, Advocate, argued that the trial court failed to consider the evidence presented by witnesses PW Jagdev Singh and PW Arun Kumar, which established his and Hira Singh's ownership and possession of the land. He also contended that the trial court wrongly applied the proviso to Section 42 of the Specific Relief Act and did not grant him the opportunity to amend his plaint to seek appropriate relief.

The respondents, represented by Mr. Anirudh Sharma, Advocate vice Mr. Rahul Pant, Sr. Advocate, maintained that the sale by Hira Singh was lawful under Section 44 of the Transfer of Property Act, which allows a co-owner to transfer their share of the property. They argued that the appellant's suit was rightly dismissed as he failed to seek recovery of possession and did not demonstrate his willingness to pay the sale consideration.

Court's Observations:

Upholding the trial court's dismissal of the appellant's suit Justice Koul noted that for a pre-emptor to succeed, they must claim possession and show willingness to pay the sale consideration.

“The suit will show that nowhere the plaintiff has sought substitution or recovery of possession or have shown his willingness to purchase the land in consideration of the amount which had been paid by the vendee to the vendor”, the bench pointed.

Furthermore, the court referenced the Supreme Court's ruling in Punyadeo Sharma v. Kamla Devi 2022, which clarified that the right of pre-emption must exist on the date of sale, the date of filing the suit, and the date of passing the decree by the first court. If this right is lost or if the vendee improves their right before the suit's adjudication, the pre-emption claim fails.

Elaborating further on the Right to pre-emption the bench found it prudent to cite Shyam Sunder and others v. Ram Kumar and another, (2016) 4 SCC 763 wherein the right of pre-emption was said to be maligned law since it was said that such rights have been characterized as feudal, archaic and outmoded.

Applying these principles and considering the repeal of the Jammu and Kashmir Right of Prior Purchase Act, 1993, the Court concluded that Roop Singh's pre-emption right, even if valid at the time of sale and suit filing, had become irrelevant due to the Act's repeal.

As a result, the appeal was dismissed as being without merit.

Case Title: Roop Singh Vs Pritam Singh

Citation: 2024 LiveLaw (JKL) 139

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