PREM DULARI versus RAJ KUMARI

Citation: [1967] 3 S.C.R. 273 · Decided: 23-03-1967 · Supreme Court of India · Bench: K. SUBBA RAO · Disposal: Dismissed

Judgment (excerpt)

A 
B 
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D 
E 
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G 
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PREM DULAR! 
v. 
RAJ 1'.UMARI 
March 23, 1967 
[K. SUBBA RAo, C.J., M. HIDAYATULLAH, R. S. BACHAWAT, 
J. M. SHELAT AND C. A. VAIDIALINGAM, JJ.J 
Th.e Right of Prior Purchase Act (J. & K. Act 11 of 1993), a . . 15 
(fourthly)--Scope of-CIMuae If v.lolates Ari. 19(1) (/) of the Constllu· 
'tion. 
The •econd respondent sold her houso to the appellant. Tho first 
respondent filed a suit for possession 0>! the house on the ground t~at she 
!tad a right of prior purchase under s. IS 
(fourthly) 
o! th.e Right.of 
Prior Purchase Act 1993, because, her house and the house m question 
had a common outer entrance within the meaning o! that clause. The 
suit was decreed. In appeal to tllis Court it was contended that: (I) On 
a proper 
constru~ion of the clause such an entrance would not give 
rise to a right o! pre-emption unless the owner claiming the right and 
the owner o! the house in question jointly owned the common outer 
entrance, and, · (2) the clause as 
mterpreted by the Courts below 
violated Art. 19(1) (f) of the Constitution and was therefore ultra vlres. 
HELD: 
(I) lbe clause provides that where the sale is of property 
hzving a common outer entrance with other properties, the right of prior 
purchase shall vest in the owners of such properties. There is nothing 
Ill the section to warrant the construction that such a right would vest 
only if the common outer entrance is jointly owned by the owners of 
such houses. [275H] 
(2) In the case of properties having a common entrance, the owners 
of the buildings would stand more or less in the pooition of C<Hharers 
and the right of pre-emption is sustainable as a reasonable restriction. 
[278E] 
Bhau Ram v. Baiinath, [1962] Supp. 3 S.C.R. 724, followed. 
Blshan Singh v. Khazan Singh, [1959] S.C.R. 878, referred to. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No 524 of 
1%~ 
. 
Appeal by special leave from the judgment and order dated 
~mi;>er 2, 1964 of the Jammu and Kashmir High Court in 
C1vi1 First Appeal No. 7 of 1964. 
B. C. Misra, S. K. Mehta and K. L. Mehta, for the appellant. 
M. C. Setalvad and Mohan Behari Lal, for respondent 
No. 1. 
The Judgment of the Court was delivered by 
. 
She~~ ~· Respendent No. 1 filed a suit in the Court of Addi-
tiOnal Distnct Judge, Jammu for possession of the house in dis-
pute, owned by the second respondent and sold by her to the ap-
pellant .. The cau~e of action pleaded was that respondent No. 1 
had a right of prior purchase under sectioa 1 S (fourthly) of the 
274 
SUPREME COURT REPORTS 
(1967] 3 S.C.R. 
-
Right of Prior Purchase Act, 11 of 1993 as her house and the 
A 
house in question had a common-outer entrance within the mean-
ing 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. 1 paying the sate price-of Rs. 13,000/-. 
Hence this appeal by special leave. 
On behalf of the appellant, the vendee, Mr. Misra raised two 
B 
questions (I) that on a proper construction of s. 15 (fourthly) this 
was not a case of the two houses 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 un-
reasonable restriction on the appellant's right to property. 
c 
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. Subse-
quently 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 
D 
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 
E 
on which the doors of these and certain other houses open. Dur-
ing the course of the trial, the trial Judge made- local inspection 
and recorded his inspection note which was admitted by the par-
ties as correct. The inspection note is as follows :-
"On spot I find that there is a common 

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