LexJ.C. SEHGAL versus DEVI DASS AND ORS.
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J.C. SEHGAL v. DEVI DASS AND ORS. APRIL 27, 2004 [S. RAJENDRA BABU, DR. AR. LAKSHMANAN AND G.P. MATHUR, JJ.] B, J & K Rights of Prior Purchase Act, 1936: Section 15 (as amended in 1973)-Pre-emption-Right of-Contiguous- cum-vicinage-Provision relating to-Deleted by amendment in 1973-Ejfect of-Property consisted of four rooms and land appurtenant thereto sold by owner to one ID - ID was accepted as landlord by tenant in one of the rooms - ID sold to one VP in 1977 the portion under tenancy-Plaintiff challenged c' the sale by way of a preemption suit on the ground that the property purchased by VP was contiguous to land belonging to him-During pendency D of the suit VP sold the property to SK who, in turn, sold the same to the said tenant-Trial court decreed the suit in 1984-Defendant purchased the property from the said tenant in 1998-Plaintiff filed petition for execution of decree in 2000-Defendant pleaded that he had no knowledge about pending of preemption proceedings or the order passed thereon-Defendant also filed a separate suit for declaration and perpetual injunction-Suit still E pending-Held: Plaintiff sought preemption on a non-existent provision of law-Therefore, the decree sought to be executed is a nullily-'-Hence, the defendant who is in possession of the property pending disposal of the suit filed by him cannot be dispossessed-Code of Civil Procedure, 1908, IJ. 21 R. 58 and 0. 39 Rr. I and 2. · The suit property comprising of four rooms along with land appurtenant thereto, was sold to one ID. The tenant in one of the rooms accepted ID as his landlord. ID sold the portion under tenancy to one VP. Respondent No.I I plaintiff challenged the said sale by way of a preemption suit under the J & F K Rights of Prior Purchase Act, 1936 on the ground that the property G purchased by VP was contiguous to the land belonging to him. Durir.g the pendency of the preemption suit, VP sold the suit property to one SK who, in turn, sold the same to the tenant who was already in possession of the suit property. The trial court decreed the suit in 1984. 723 H 724 SUPREME COURT REPORTS [2004] SUPP. I S.C.R. A The appellant purchased the suit property from the said tenant in the year 1998. Respondent No. I/plaintiff filed a petition for execution of the said decree in the year 2000. The trial court issued a warrant of possession. The appellant pleaded that he had no knowledge about the pendency of the preemption proceedings or the order passed thereon:The appellant filed an B application raising various grounds under Order 21 Rules 58, 99 and 101 of the Code of Civil Procedure, 1908 and prayed for stay of the operation of the warrant of possession. The appellant also filed a ~eparate suit for declaration and perpetual injunction challenging the decree obtained by respondent No. 1. The suit filed by the appellant was still pending. C The trial court rejected the appellant's application. The appellate court granted interim order. The District Judge allowed the appeal and stayed the ex parte decree till the final decision of the suit. The appellant and respondent No. 1 filed a revision petition before the High Court. The High Court dismissed the appellant's revision petition. Hence the appeal. D Allowing the appeal, the Court HELD: 1.1. Section 15(6) of the J & K Rights of Prior Purchase A~t, 1936 was amended in the year 1973 and the provision relating to the owners of the property contiguous to the property sold was deleted. (731-D; 732-C-DJ E 1.2. The suit had been filed by respondent No. 1 in 1978 claiming pre- emption under a law that existed prior to the amendment in 1973. After 1973, there is no provision in the Act for an owner of a property contiguous to the property sold to seek preemption. Thus the plaintiff/respondent No. 1 asked for grant of a decree under clause 'sixthly' of the un-amended Section 15 (as existed prior to 1973). However, the decree that was passed, was on tbe basis F of clause 'fifthly' of Section 15. [732-D-EJ 1.3. Thus, though respondent No. 1 had sought pre-emption on a non- existent provis.ion o,f law, the Court granted such pre-emption decree on another ground which had not been argued and thus the said decree was the G subject~matter of challenge in the two suits. (733-FJ 2.1. The appellant has also filed a suit praying for a declaration and permanent injunction on the ground that the decree is a nullity as it had been pas
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