Suit for right of prior purchase

2018 CLCN 85 HIGH-COURT-AZAD-KASHMIR Judicial Precedent

Ss. 4, 6, 14 & 16Suit for right of prior purchaseRival pre-emptor

Plaintiff filed suit for right of prior purchase with the plea that suit land was transferred without his knowledge and consent

Rival pre-emptors also filed suit against the said land

Trial Court decreed the suit of plaintiff

Appellate Court accepted the appeal against judgment of Trial Court partially and suit land was distributed between the plaintiff and the rival pre-emptors

Validity

Appellate Court had rightly concluded the case of both plaintiff and the rival pre-emptors by awarding them proportionate share according to their respective shares in the disputed Khewat

Judgment by Appellate Court was based upon sound and cogent reasons

No illegality or perversity had been committed while passing the judgment and decree by the Appellate Court

Appeal was dismissed in circumstance.

2017 YLR 327 SUPREME-COURT-AZAD-KASHMIR Judicial Precedent

Ss. 4 & 6Azad Jammu and Kashmir Shariat Court Act (IX of 1993), S. 6Suit for right of prior purchasePre-empted property being urbanEffect

Suit was dismissed on the ground that pre-empted property being urban was exempted from the operation of right of prior purchase

Validity

Judgment of Shariat Court declaring S. 6 of Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (BK) against the injunctions of Holy Quran and Sunnah would take effect on 05-10-1999 i.e. the date specified in the same and not retrospectively

Provision of S.6 of Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (BK) had ceased to have its effect

Discretionary power of Government to exempt the property from operation of right of pre-emption in town area had become ineffective w.e.f. 05-10-1999

Sale deed, in the present case, had been executed on 06-08-2003

Pre-emption suit with regard to sale of such property filed after 05-10-1999 was maintainable

Plaintiff could not be non-suited on the ground of exemption of property from the right of prior purchase

Factual issue with regard to right of prior purchase being a co-sharer had already been resolved in favour of plaintiff

Impugned judgments passed by the courts below were set aside by the Supreme Court and suit was decreed

Plaintiff was directed to deposit sale price of suit property along with expenditures incurred on the same

Vendee would hand over the possession of suit land to the plaintiff on depositing of decretal amount and if plaintiff failed to deposit the said amount within stipulated period then suit would be deemed dismissed

Appeal was allowed in circumstances.

2017 YLR 20 SUPREME-COURT-AZAD-KASHMIR Judicial Precedent

O. VI, R. 17 & O. XX, R. 14Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (BK), Ss. 4 & 6Suit for right of prior purchaseAmendment in plaintScopeApplication seeking amendment in the plaint with regard to prayer for possession was dismissed by the High CourtValidityNeither Appellate Court had passed order in violation of law nor travelled beyond its jurisdictionExercise of writ jurisdiction in such circumstances was uncalled for and unwarranted

Prayed amendment was a mere formality as in pre-emption suit the ultimate relief was delivery of possession of pre-empted property

Court on grant of decree of pre-emption had to direct for delivery of possession of suit property to the plaintiff from the date of payment of decretal amount

Pre-emption suit was basically a suit for possession

Impugned judgment passed by the High Court was set aside

Appeal was accepted in circumstances.

2017 MLD 942 SUPREME-COURT-AZAD-KASHMIR Judicial Precedent

Ss. 4, 6 & 21Suit for right of prior purchaseNon-deposit of 1/5th amount of total value of the price of the landEffect

Trial Court ordered to deposit 1/5th of the ostensible price on or before 28-10-2010 otherwise suit should be deemed to be dismissed

Plaintiff did not deposit the said amount till the date fixed and he moved an application for depositing the same which was allowed by the Trial Court but Appellate Court dismissed the suit while dismissing the application for deposit of 1/5th amount

Validity

Plaintiff had not deposited the 1/5th amount till the date fixed by the Trial Court which would mean that suit was automatically dismissed under the condition laid down by the Trial Court

No sufficient cause had been explained by the plaintiff for non-depositing the 1/5th amount or sufficient reason for non-filing the application on or before the date fixed

Time for depositing the said amount could be extended if plaintiff had filed application for extension before the trial court on sufficient cause but said application was not moved

No hurdle existed to file application for extension of time to deposit the said amount by the plaintiff

Plaint was liable to be rejected on the date fixed for deposit of 1/5th amount by the Trial Court

Order passed by the Trial Court was without jurisdiction and reason

Appellate Court had rightly set aside the order of Trial Court and dismissed the suit for non-deposit of 1/5th amount

Plaint of plaintiff should have been rejected instead of dismissal of the same

Judgment of Appellate Court was modified to this extent and plaint was rejected

No illegality had been pointed out in the impugned judgment passed by the appellate court

Appeal was dismissed in circumstances.

2017 MLD 552 SUPREME-COURT-AZAD-KASHMIR Judicial Precedent

Ss.4, 6 & 14Suit for right of prior purchasePreferential rightScopeLand of defendants was adjacent to the pre-empted land whereas land of plaintiff was bifurcated from the samePreferential right of purchase of plaintiff had not been proved from the recordPre-emptor had failed to prove his claimAppellate Court was justified to dismiss the suit filed by the pre-emptorNo mis-reading or non-reading of evidence or illegality had been pointed out in the impugned judgments

Appeal was dismissed in circumstances.

2017 MLD 240 SUPREME-COURT-AZAD-KASHMIR Judicial Precedent

Ss. 4 & 6Suit for right of prior purchasePartial pre-emption, doctrine ofScope

Suit was dismissed on the ground that land had been sold along with trees and rights in Aar-Banna but plaintiff had not pre-empted the sale as a whole

Validity

Trees and Aar-Banna were attached with the land and were not separate entity to be sold separately

Plaintiff had pre-empted the sale as a whole

Non-mentioning of trees and Aar-Banna in the plaint would not affect the suit of plaintiff

Suit of plaintiff was not hit by the partial pre-emption

Impugned judgments passed by the courts were not maintainable

Defendant had claimed costs of the improvement and he was entitled for the same as decided by the Trial Court

Impugned judgments passed by the courts below were set aside and suit was decreed

Plaintiff was directed to deposit the decretal amount plus expenses incurred on execution of sale deed and costs of improvement within sixty days failing which suit should be deemed to be dismissed

Appeal was allowed in circumstances.

2017 YLRN 129 SUPREME-COURT-AZAD-KASHMIR Judicial Precedent

Ss. 4 & 6Transfer of Property Act (IV of 1882), S. 52Suit for right of prior purchaseImprovements made during pendency of suitLis pendens, principle ofApplicabilityTrial Court decreed the suit along with cost of improvements but Appellate Court disallowed such costValidityPre-emptor filed suit on 14-12-1996 whereas disputed gift deed in favour of defen-dants was registered on 30-08-1999Suit property was transferred in favour of defendants during pendency of suitAdmitted facts did not need to be provedImprovements had been made after transaction of gift deedGift deed was effected after three years' period from the date of institution of suitAny transaction made in violation of S.52 of Transfer of Property Act, 1882 did not create any right or interestCourt could only grant relief on the basis of equity and legal rightsNo one could claim relief as bonus of violation of law or illegal actsDefendants in the light of their own pleadings were barred to claim the costs of improvementsImpugned judgment passed by the High Court did not suffer from any illegality or infirmity

Appeal was dismissed in circumstances.

2017 CLCN 124 SUPREME-COURT-AZAD-KASHMIR Judicial Precedent

Ss. 4, 6, 14 & 20-ASuit for right of prior purchase

Trial Court dismissed suit on the ground that vendee had improved his status by becoming co-sharer in the khewat during pendency of suit

Appellate Court set aside the findings recorded by the Trial Court to the extent of improvement in the status of vendee with the observation that such improvement during pendency of suit was not permissible

Suit filed by the pre-emptor was decreed by the Appellate Court subject to depositing the decretal amount within the time specified by the Court

Validity

Court was vested with the powers to grant relief to a party who had not come in appeal

Where there were two rival pre-emptors, failure of one pre-emptor to file appeal created right in favour of the other

Relief could not be granted to an absentee in presence of the party who had been given preference by the Court

Vendee had to protect his own rights and he could not litigate on behalf of rival pre-emptor against his own rights

Law did not recognize proxy litigation

Where vendee in pre-emption suit had come forward to protect the rights of rival pre-emptor, inference could be drawn that pre-emptor had filed suit in collusion with the vendee

Status of co-sharer had to be determined on the basis of khewat, khatooni and mahal

Right of pre-emption would vest firstly in shafi sharik

Pre-emptor had succeeded in proving himself as shafi sharik therefore it would be futile to discuss the right of pre-emption on the basis of contiguity of survey number which would fall in the category of shafi jar

Appeal was dismissed in circumstances.

2016 MLD 523 HIGH-COURT-AZAD-KASHMIR Judicial Precedent

Ss. 4 & 6Civil Procedure Code (V of 1908), O. XXII, R. 4(3)Suit for right of prior purchaseDeath of one of the defendants during pendency of suitNon-impleading representative-in-interest of deceased defendantAbatement of suitScope

Defendant filed application for abatement of suit on the ground that legal heirs of other deceased defendant were not arrayed as party within time

Application for abatement of suit was dismissed concurrently

Validity

Amended provisions of O. XXII, R. 4(3), C.P.C. had retrospective effect

Suit filed by the plaintiff had not been abated due to death of one of the defendants

Revisions was dismissed with costs.

2015 YLR 1187 SUPREME-COURT-AZAD-KASHMIR Judicial Precedent

Ss. 4, 6 & 21Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 42Appeal to Supreme CourtSuit for right of prior purchaseZar-e-Panjum, deposit ofScopeTrial Court directed the plaintiff to deposit one-fifth of probable consideration amount

Plaintiff filed an application for permission to furnish surety bond instead of cash deposit which was dismissed concurrently

Contention of plaintiff was that Trial Court had jurisdiction to change order from depositing of cash amount to furnishing the security and from security to cash deposit

Validity

Trial Court was bound to order for deposit of security to the plaintiff whether equal to one-fifth of the probable value of the land or required him to give the security to the satisfaction of court not exceeding the probable value of the property

Such power had to be exercised before the settlement of issues

Trial Court had no jurisdiction to order for cash deposit or other security after framing of issues

If plaintiff had sought equity for himself then he must do equity in favour of other party

Vendee had purchased suit land against the price of Rs. 8.5 million and due to filing of pre-emption suit his huge amount would remain stuck till the disposal of the case

Plaintiff had to prove his bona fide by acting in an equitable manner

Amount deposited should be available for the discharge of costs and if plaintiff had failed to deposit or furnish the amount of security within time specified by the court then plaint should be rejected or appeal should be dismissed

Courts below had passed the impugned orders in a legal manner

No illegality was pointed out in the judgment passed by the High Court

Plaintiff was allowed 8 day's time for depositing amount equal to one-fifth of ostensible price from the date of announcement of judgment

Appeal was dismissed in circumstances.

2015 YLR 675 HIGH-COURT-AZAD-KASHMIR Judicial Precedent

Ss. 4 & 6Suit for right of prior purchaseGift-deedScope

Contention of plaintiff was that transaction was in fact a sale but same had been made gift only to defeat his right of prior purchase

Suit was decreed by the Trial Court but same was dismissed by the first Appellate Court

Validity

Court had powers under S. 4 of Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (BK) to declare that any transaction purporting to be other than a sale was in fact a sale

Trial Court had rightly appreciated said provisions of Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (BK) while recording judgment and decree through which gift-deed was declared as a sale-deed

Defendants could not produce any witness in support of their version

No witness present at the time of execution of gift-deed had been produced nor any reason for donation of said property had been mentioned in the said deed

Owner of a property had a right to transfer the same according to his choice but intention of said owner had to be taken into consideration

Court had to find out the real intention of the parties who had entered into the transaction and should decide the issue upon all available material

Matters in civil cases had to be decided unlike criminal cases where a party was required to prove his case beyond any shadow of doubt

Defendants were required to rebut the evidence produced by the plaintiff that gift-deed was actually a sale in the garb of a gift but they had failed to do so

Defendants had failed to place any document on record to show that they were co-sharers in the khewat and khata of disputed land

Plaintiff had proved that he had got a prior right of purchase with regard to suit land

Impugned gift-deed was in fact a sale-deed

Judgment and decree passed adversely by the Appellate Court below were set aside and those of Trial Court were maintained

Appeal was accepted in circumstances.

2015 YLR 357 HIGH-COURT-AZAD-KASHMIR Judicial Precedent

Ss. 4 & 6Suit for right of prior purchaseLimitationPartial pre-emption, doctrine ofScopeSuit was dismissed on the ground that same was hit by the doctrine of partial pre-emptionValidity

Construction of house and existence of trees over the disputed land were mentioned in the sale-deed but same were not claimed by the plaintiff

Plaintiff had deliberately and purposely made such omission in the plaint who was bound to claim all the rights endorsed in the sale-deed

Vendee must take over the whole bargain or forego his claim altogether and he could not be permitted to pick and choose

Partial pre-emption could not be allowed which was fatal in the present case and suit was not maintainable

Sale-deed was executed on 29-3-2002 and suit was filed on 6-5-2002 which was within the prescribed period of limitation

Findings recorded by the courts below were based on sound and cogent reasons

Appeal was dismissed in circumstances.

2015 MLD 85 HIGH-COURT-AZAD-KASHMIR Judicial Precedent

Ss. 4 & 6Civil Procedure Code (V of 1908), S. 12(2)Suit for right of prior purchaseWithdrawal of suit on the basis of compromiseAppealWithdrawal of said appeal with permission to file application under S. 12(2), C.P.C. before the Tria l CourtScope

Plaintiff did not press for permission to file an application under S.12(2), C.P.C. before the Appellate Court and he prayed only for withdrawal of appeal

No bar with regard to filing application under S.12(2), C.P.C. with the Trial Court was imposed by the Appellate Court

Plaintiff was debarred to pray for permission to move an application under S. 12(2), C.P.C.

Revision was not maintainable which was dismissed in circumstances.

2014 YLR 1972 HIGH-COURT-AZAD-KASHMIR Judicial Precedent

0. VI, R. 17Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (BK), Ss. 4 & 6Suit for right of prior purchaseAppealAmendment of pleadings/prayer clause of plaintScope

Amendment sought had already been mentioned in the plaint and consequential relief had also been prayed for with regard to controversy

Decree to the extent that impugned gift-deed was in fact a sale-deed could also be granted on the basis of present prayer clause

Application for amendment had been filed to clarify the prayer clause while adding the proposed amendment

Issue was also framed with regard to the fact whether gift-deed was in fact a sale-deed and both the parties had produced their evidence on the said controversy

Amendment in the pleadings could be granted at any stage of the proceedings provided that same could only be allowed for resolution of real question in controversy

Cause of action and nature of suit in the present case would not change by granting the said amendment

No additional issue was required to be framed and no evidence was needed to be produced with regard to proposed amendment as parties had already produced evidence on such version

Proposed amendment was necessary for resolution of real question in controversy

Application for amendment could be filed at any stage of proceedings which was allowed accordingly.