Judgment:
J.P. Singh, J.
1. This Civil Ist Appeal is directed against judgment and decree dated 29-09-2000 of Learned District Judge, Jammu decreeing respondent Nos. 1 & 2's suit for possession of a house comprising of two rooms, one kitchen, one bath room on the ground floor and two rooms on the first floor of House No. 497, Dakhi Hajama, Jammu on the basis of right of prior purchase on payment of sale consideration of Rs. 49,000/-.
2. Facts:
House No. 497, Dakhi Hajama, Jammu was originally owned by one Smt. Prem Kanta. Respondent Nos. 1 & 2, the plaintiffs were tenants in possession of that portion of the house which was the subject matter of the suit out of which this appeal has arisen. This house was sold by Prem Kanta to one Rajinder Kumar who had later sold a portion of it to the appellant ignoring respondent Nos. 1 & 2's alleged right of prior purchase of the house. Respondent Nos. 1 & 2, therefore, filed a suit for possession of the house on the basis of their right of prior purchase. The appellant, contested respondents' suit on the ground that he and his brother were also tenants of Smt. Prem Kanta and the status of the appellant and respondent Nos. 1 & 2 being same as that of a tenant at the time of the sale, the respondents as such, could not claim any preferential right of prior purchase of the suit house. The appellant further says that when the original owner Smt. Prem Kanta had sold a portion of the house to respondent No. 3, the respondents had not challenged that sale deed in exercise of their alleged right of prior purchase and in that view of the matter, they were estopped from questioning the sale in favour of the appellant because he too was a tenant along with his brother in the house.
3. The parties were put to the following issues by the trial court:
1. Whether the plaintiff has a right to pre-empt the same executed by defendant No. 2 in favour of defendant No. 1 OPP
2. In case issue No. 1 is answered in affirmative, whether plaintiff has waived his right to pre-empt, if any? OPD
3. Whether the plaintiff suit is barred by limitation? OPD
4. Relief.
4. The trial court decreed the suit vide judgment & decree dated 29th of September, 2000.
5. Questioning the decree, Mr. P. N. Goja, appearing for the appellant submitted that his brother, Rajinder Kumar, being a co-sharer in the house, had the preferential right of pre-emption and respondent Nos. 1 and 2 would have no right to maintain the suit in presence of the co-sharer of the property. He next submitted that the appellant being a tenant of the other part of the premises of house No. 497, Dakhi Hajama, Jammu had equal right of pre-emption regarding that portion of the house over which respondent Nos. 1 & 2 had claimed the right of prior purchase.
6. Mr. P.N. Raina, appearing for respondent Nos. 1 and 2, plaintiffs, submitted that the first plea raised on behalf of the appellant was not available to him because such a plea had not been so raised in the pleadings and this plea could not be taken for the first time in the appeal. Meeting the second submission of learned Counsel for the appellant, Mr. Raina submitted that every tenant of house No. 497, Dakhi Hajama, Jammu, would not have right of pre-emption because such right of pre-emption would vest only in that tenant who was in possession of the premises which had been sold by the owner ignoring the rights of the person in possession of the premises as a tenant.
7. In order to appreciate the contentions raised at the Bar, regard need to be had to the provisions of Section 15 of the Jammu and Kashmir Right of Prior Purchase Act, 1993 (1936 A. D.), which for facility of reference reads thus:
15. Persons in whom right of prior purchase vests in Urban immovable property - The right of prior purchase in respect of urban immovable property shall vest,:
Firstly- in the co-sharer of such property, if any ;
Secondly- where the sale is of the site of the building or structure;
Thirdly- where the sale is of property having a stair case common to other properties, in the owners, of such properties;
Fourthly - where the sale is of property having a common outer entrance with other properties, in the owners of such properties;
Fifthly- where the sale is of a servient property, in the owners of the dominant property, and vice versa;
Sixthly- in the tenant occupant thereof;
8. Plea of appellant's counsel that appellant's brother Rajinder Kumar had purchased House No. 497 Dhaki Hajama, Jammu on the same day when the appellant had purchased the suit house would defeat respondent Nos. 1 & 2's claim of having right of prior purchase of the suit house, if any, because in presence of appellant's brother's preferential right of prior purchase, being a co-sharer in house No. 497, Dhaki Hajama, Jammu, does not appear to be tenable for two reasons. Firstly, because sale of part of house No. 497, Dhaki Hajama, Jammu by its owner to appellant's brother makes him owner of only specific portion of house No. 497, Dhaki Hajama, Jammu which had been conveyed to him by the owner. Appellant's brother would not thus acquire any right muchless of being a co-sharer in that portion of house No. 497, Dhaki Hajama, Jammu which continued to vest in the owner who had sold it to the appellant as a separate unit. Appellant's plea that his brother was a co-sharer of the suit house and had first right of pre-emption, is thus mis-conceived. Even if one were to assume that there was a co-sharer of that portion of the property which was the subject matter of the suit (which is, however, not the position in the present case), even in that case, presence of a co-sharer would not deprive the other persons mentioned in Section 15 of their right of pre-emption in case no motion had been laid by any of those categories of persons mentioned in clauses firstly to fifthly of Section 15 of the J&K; Right of Prior Purchase Act, 1993 (1936 A. D.) The first plea raised by the appellant's counsel, which, although, not urged during the currency of the suit, even if were to be allowed to be raised in the appeal, would fail as mis-conceived.
9. The second plea of learned Counsel for the appellant is equally devoid of any force because it is the tenant who is in possession of the suit property who is entitled to the right of prior purchase contemplated by clause sixthly of Section 15 of the J&K; Right of Prior Purchase Act, 1993 (1936 A. D.). This is so because the expression 'in the tenant occupant thereof' leaves no manner of doubt that before staking his claim of right of prior purchase, a tenant has to be a tenant, And in occupation, of the premises over which he claims such right. The appellant does not satisfy any of these two requirements. He was neither a tenant nor in possession of the subject matter of the suit. His plea that his status was that of a tenant in the premises and he was similarly situated like respondent Nos. 1 & 2, is, therefore, without any merit.
10. Rejecting both the pleas, this appeal is, accordingly, dismissed with costs assessed at Rs. 1000/-. Registrar to draw a decree.