Jammu & Kashmir High Court
Anil Kumar And Ors. vs Arun Parkash And Ors. on 18 May, 2005
Equivalent citations: AIR2006J&K15, 2005(2)JKJ541
JUDGMENT Y.P. Nargotra, J.
1. These three Civil Second Appeals arise out of a common judgment and decree dated 30.5.1985 passed by the learned District Judge Udhampur whereby the judgment and decree dated 5.8.1989 passed by learned Sub-Judge Udhampur has been upheld and Civil Ist Appeals of the appellant have been dismissed. The appeals have been admitted for hearing on the following substantial questions of law:-
A- Whether error of law has been committed by the courts below in declining to grant the relief of possession on the basis of right of prior purchase in terms of Section 14 (a) Secondly?
B- Whether the issue of limitation is vitiated as being against law?
2. The brief narration of the basic facts involved is that defendants 2&3, Jai Parkash and Rajinder Parkash, who are real brothers of Sukhdev Singh, original plaintiff and predecessor-in-interest of the present appellants, were absolute owners of the land measuring 2-kanal 13 Marias comprising in survey Nos. 332/300/20/104/65, situate at village Sujalta, Tehsil Udhampur which was sold by them to Arum Kumar, defendant No. 1 vide sale deed dated 20.7.1983. The sale deed is the subject matter of CSA 30/95. Likewise Smt. Bhagwanti, the mother of defendants 2&3 and original plaintiff in CSA 31/95 was absolute owner of the land measuring 11-marla comprising in khasra No. 202/199/184/65. She sold that land vide sale deed 29.7.1983 to defendant No. 1 Arun Kumar. Smt. Bhagwanti was also absolute owner of the land measuring 2-kanal comprising in survey No. 202/199/184/65. The defendants 2&3, her son, Jai Parkash and Rajinder Parkash were occupancy tenants in the said land. Vide sale deed dated 29.7.1983 Smt. Bhagwanti sold her ownership rights while defendants 2&3 sold tenancy rights to Arun Kumar defendant No. 1. Thus vide aforesaid three sale deed three pieces of land were purchased by Arun Kumar defendant No. 1 on 29.7.1983 and came in possession thereof.
3. Sukhdev Singh, predecessor-in-interest of the present appellants filed three civil suits for possession of the land sold vide three sale deeds mentioned above against defendant No, 1 Arun Kumar and vendors on the basis of right of pre-emption in terms of Section 14(a)secondly and clause(c) firstly.
4. Right of pre-emption as envisaged by Section 14(c) firstly could be exercised by the owners of the Mahal wherein such agricultural land or the property, the subject matter of sale, was situated. Defendant No. 1 Arun Kumar with a view to defeat the right of pre-emption of the plaintiff Sukhdev Singh under clause (c) firstly obtained a gift of the land in the same khewat out of which the land stood sold to him vide sale deeds in issue. Plaintiff by an independent suit challenged the gift deed which had been executed in favour of defendant No. 1 but his suit was dismissed by the trial court and the plaintiff remained unsuccessful in civil first appeal before the District Judge. Aggrieved by the dismissal of his appeal he came up in Civil Second Appeal No. 33/95 in this court which was also dismissed by this court vide its judgment dated 20.2.2001. While dismissing the appeal of the appellant Sukhdev Singh the number of the appeal came to be reflected as CSA 35/1995 due to clerical/typographical error. Same was corrected by order dated 16.7.2001 whereby it was ordered that instead of CSA 35/1995 it be read as CSA 33/1995. The plaintiff-appellant challenged the judgment dated 20.2.2001 before the Supreme court but the Supreme Court upheld the order of this court and thereby judgment dated 20.2.2001 attained finality. The effect of dismissal of the appeal and the suit of the plaintiff was that that he was not entitled to claim possession on the basis of right of prior purchase Under Section 14(c) firstly. Therefore in the three suits filed by him the only ground surviving pertained to clause 14(a) secondly. Section 14 (a) secondly of the Right of Prior Purchase Act 1993 reads as under:-
"14.Persons in whom right of prior purchase vests in respect of sales of agricultural land and village immovable property- notwithstanding anything contained in any law, rule or custom but subject to the provisions of Section 13, the right of prior purchase in respect of agricultural land and village immovable property shall vest-
(a) where the sale is by sole owner or occupancy tenant or in the case of land or property jointly owned or held by all the co-sharers jointly -
xxxxxxxxxxxx Secondly-in the person or in order of succession who but for such sale would be entitled on the death of the vendor or vendors, to inherit the land or property sold."
5. During the pendency of suits in another case titled Fazal Khan v. Yaqoob Khan, 1988 KLJ 371 the validity of provision contained in Section 14(b) firstly and fourthly, which read as follows came up for consideration:-
(b) when the sale is of a share out of the joint property and is not made by all the co-sharers jointly-
Firstly-in the lineal descendants of the vendor in order of succession;
Fourthly-in the person not included under the above categories in order of succession, who but for such sale would be on the death of the vendor entitled to inherit the land or property sold."
6. This Court held the provisions of clause (b) firstly and fourthly to be ultra vires of the constitution. The learned trial court dismissed all the three suits of the plaintiff Sukhdev Singh on two counts (1) that the suit were barred by limitation on account of delay of two days and (2) that right of pre-emption of the plaintiff stood successfully defeated by defendant No. 1 as he had become an owner of the same khewat out of which he had purchased the land under the sale deeds in issue. Aggrieved by the dismissal of the suits the plaintiff filed civil first appeals before the District Judge. The District Judge Udhampur has dismissed the appeals by holding that the suits of the plaintiff were time barred on account of delay of one day only in filing the same.(which according to the trial court was of two days). Learned District Judge also held that in so far as right of pre-emption vested in the plaintiff Under Section 14(c)firstly is concerned it was not available to the plaintiff in view of the fact that the defendant No. 1 had acquired four marlas of land in the same khewat through a gift in which the land stood sold to him under the sale deeds in issue. So far as right of pre-emption claimed by the plaintiff Under Section 14(a)secondly is concerned the learned District Judge held that said right was founded on the ground of agnatic rules of succession or consanguinity, the plaintiff was not entitled to relief claim as the same was stemming out of the provisions of Section 14(b) fourthly of the Right of Prior Purchase Act but the said provision stood already struck down and declared as ultra vires of the constitution by this court in the case of Fazal Khan (supra).
I have heard the learned counsel for the parties on the substantial questions of law referred to above and have gone through the record thoroughly. Firstly I would take up question No. 2 because if the suits of the plaintiff are found to be time barred there will be no necessity to go for adjudication of issue No. 1 Q2. WHETHER THE ISSUE OF LIMITATION IS VITIATED AS BEING AGAINST LAW?
7. The sale deeds on the basis of which the plaintiff filed the suits were executed on 29.7.1983 and registered on the same day. The possession is said to have been delivered under these sale deeds to respondent No. 1 on the same day. The suits were filed on 30.7.1984. Limitation prescribed under Article 10 of the Limitation Act for instituting a suit for enforcing right of prior purchase is one year from the time physical possession is acquired by the purchaser. Both the courts below have held the suits to be time barred as according to them limitation started to run from 29.7.1983 (Date of execution of sale deed) and expired on 28.7.1994. The suits having been filed on 30.7.1984 were barred by limitation.
8. The contention of Mr. Sharma, learned counsel for the appellant, is that both the courts below have erred in computing the period of limitation. According to him for computing limitation the day of 29th July 1983 has to be excluded and the period of limitation has to be reckoned from 30.7.1983. According to Mr. Sharma if the period is reckoned from that date it would have expired on 29.7.1984. On 29.7.1984, it was Sunday and the courts were closed. The suits as such could be filed on 30.7.1984. As the suits in the present cases were instituted on 30.7.1984 same are within time.
9. For computing the period of limitation for filing suit, appeal or an application Section 12 of the Limitation Act provides that the day from which such period is to be reckoned shall be excluded. Therefore, for computing the period of limitation the day of 29.7.1983 was to be excluded. The period of limitation was thus to be reckoned from 30.7.1983. The period of one year would have thus expired on 29.7.1984. Admittedly 29.7.1984 was Sunday and courts were therefore closed, the suits therefore, could be filed only on 30.7.1984, the day on which courts re-opened in view of the provision contained in Section 4 of the Limitation Act which provides that where period of limitation expires on a day when the court is closed, suit, appeal or application may be instituted on the day the court re-opens. The courts below were not, therefore, right in saying that limitation expired on 28.7.1984.
10. Mr. Wazir learned counsel for the respondents however argued that the provisions of Limitation Act were not applicable to the suits of the appellants for the reason that the suits were filed under special Act i.e. Right of Prior Purchase Act and period for instituting suits under that Act stood prescribed in Section 29. Therefore, according to Mr. Wazir question of limitation is to be decided keeping in view the provisions contained in Section 29 only. Section 29 reads as follows:-
29-Limitation - In any case not provided for by Article 10 of the Second schedule of the Limitation Act, Svt.1995 the period of limitation in a suit to enforce a right of prior purchase shall be one year
(a) in the case of a sale of agricultural land or village immovable property, from the date of attestation (if any) of the sale by a Revenue Officer having jurisdiction in the register of mutations maintained under the Land Revenue Act; or from the date on which the vendee takes under the sale physical possession of any part of such land or property; whichever date shall be earlier."
11. The section opens up with the words 'in any case not provided for by Article 10 of second schedule of the Limitation Act'. It is, therefore evident from these words that Section 29 provides for limitation in respect of those cases, which are not covered by Article 10, schedule II of the Limitation Act. Mr.Wazir has not been able to show as to why Article 10 of the Limitation Act will not apply to the present suits filed by the plaintiff. The plaintiff in the suits is seeking enforcement of right of prior purchase based on the provision of Right of Prior Purchase Act. The limitation prescribed is one year from the time when the purchaser takes physical possession of the whole of the property sold under the sale deed. In the present case admittedly the plaintiff acquired possession under the sale deeds on 29.7.1983, therefore, the suits are clearly covered by Article 10 of the Limitation Act.
12. Assuming for the sake of argument that Article 10 of the Limitation Act has no application to the suits of the plaintiff and the same are governed by the provision of Section 29, even then the limitation for filing the suit remains the same i.e. one year from the date on which the vendee takes under the sale deeds physical possession of any part of such land or property. In the present case undisputedly the plaintiff acquired possession of the land in pursuance of the sale deeds in issue on the date of execution of the salSe deeds i.e. 29.7.1983. Thus irrespective of the fact whether Section 29 of Right of Prior Purchase Act applies or Article 10 of the Limitation Act applies for computing the limitation for filing the suit, the limitation would have started to run from 29.7.1983.
13. Now if the provisions of Section 12 & 14 of Limitation Act apply to the suits contemplated by Section 29 of Right of Prior Purchase Act, the suits of the plaintiff will be within time. Section 29(2) of the Limitation Act provides that Sections 4, 9 to 18 & 22 shall apply to the extent to which they are not expressly excludedjby Special Act. Since no provision of Prior Purchase Act excludes their applicability, so these provisions apply to the suits. The suits of the plaintiff are thus not time barred. The findings of the court below cannot sustain and as such set aside.
Question No. 2 is answered accordingly.
Q1-WHETHER ERROR OF LAW HAS BEEN COMMITTED BY THE COURTS BELOW IN DECLINING TO GRANT THE RELIEF OF POSSESSION ON THE BASIS OF RIGHT OF PRIOR PURCHASE IN TERMS OF SECTION 14(a) SECONDLY?
14. Learned counsel for the appellants, Mr. Sharma, submits that the plaintiff claimed restoration of possession of the land from defendant No. 1 which he had purchased vide aforesaid three sale deeds in exercise of his right of prior purchase Under Section 14(a) secondly and clause (c) firstly. Mr. Sharma fairly concedes that in view of the judgment of this court dated 20.2.2001 passed in CSA 33/1995, upheld by the Supreme Court, the plaintiff has become disentitled to the relief as claimed under clause(c) firstly. According to him his right to claim relief Under Section 14(a) secondly survives as in view of the relationship of the plaintiff with the vendors he is entitled to exercise right of prior purchase as had such sales not been made by the vendors he would have inherited the land sold after their death. Mr. Wazir learned counsel for respondent No. 1, however argues that right of the plaintiff to claim relief Under Section 14(a) secondly depended upon validity of the said provision. He submits that identical provision as contained in Section 14(b) fourthly has already been declared ultra vires of the constitution by this court in Fazal Khan v. Yaqoob Khan, 1988 KLJ 371, the provision of Section 14(a) secondly is also bad in law and is ultra vires of the constitution, as such same should be struck down.
15. In view of the contention raised in this behalf at the Bar, learned Advocate General of the State, was put on notice and he has also been heard. Mr.Wazir submits that the provisions contained in Section 14 clause (a) secondly is identical to the provisions contained in clause (b) fourthly and is cast in the same language, therefore, both the provisions have to be kept at the same pedestal. He argued that since the provisions of clause (b) fourthly has been declared ultra vires of the constitution by this court on the same reasoning provision contained in clause (a) secondly of Section 14 is also required to be declared ultra vires. He further submits that since the aforesaid provision is bad in law, therefore, plaintiff is not entitled to any relief whatsoever under that clause.
16. Undisputedly the provision contained in clause (a)-secondly is couched in the same language in which provision of clause(b)Fourthly was existing. While considering the validity of the provision contained in clause (b) Fourthly this court in Fazal Khan's case (supra) 1988 KLJ 371 after relying upon Supreme Court judgment rendered in Atam Parkash v. State of Haryana, held:-
"16. The object with which the Jammu and Kashmir Right of Prior Purchase Act, like similar statutes in other States, was enacted was to suit the social conditions prevailing at that time but the same is no longer suitable to the social necessities of this time. Restriction on the sale of immovable property not only prevents developmental activities but is also inconsistent with the present democratic set up and the concept of a welfare State which the constitution aims at providing. The State of Jammu and Kashmir is like the State of Haryana, in the process of industrialization. Industries have sprung up and are in the process of being set up throughout the State. The population is also in a state of constant movement. The consequences of industrilisation, mechanization of agriculture, the allurement of professions and offices and the employment opportunities have considerably weakened the family ties and the traditional integrity of the family and has resulted in urbanization and influx towards the cities and towns. This march of the society cannot be stopped as, indeed it would not be in the interest of the society now to revert back to the traditional rural- family-oriented society. The law, which hampers developmental activities and progress of the society to have better socio-economic order, must give way to the present day context for the benefit of the society at large. The right of pre-emption based on agnatic rule of succession and consanguinity is an outmoded one in the modern changed socio-economic conditions and it creates a clog on the right of the owner to alienate his property to the person of his choice and hampers forward march. It is no longer justified, required or necessary.
17. The preamble of the Constitution fo Jammu and Kashmir declares the resolve of the people of the State secure to themselves, social, economic and political justice. These aims have been vividly expanded in Part IV of the constitution, which contains the Directive Principles of the State Policy. The Directives lay down that the prime object of the State shall be the promotion of the welfare of the mass of the people by "establishing and providing a socialist order of society:. It is also envisaged that "exploitation of man" would be abolished and the means of production where they are privately owned would not be allowed to be used to the common detriment. The implication of the expression "establishing and preserving a socialist order of society" is clearly to set up "vibrant, throbbing, socialist welfare society" in the place of "feudal, exploited society". Thus while considering the constitutional validity of a statute, it is necessary to consider the question whether the classification that the legislature has made is consistent with the objective set out in the preamble and the Directive Principles contained in Part IV of the constitution of the State? A classification which is not in tune with the constitution is per se unreasonable. The right to pre-empt a sale on the basis of agnatic rule of succession or consanguinity would run counter to the above Directive and such a right which offends against the Directive Principles cannot be considered reasonable and cannot be permitted. It would thus be proper if the provisions of Section l4(b) firstly and fourthly which are a relic of the feudal past, unreasonable, unjustified and against the constitutional scheme and the spirit of the constitution of Jammu and Kashmir and particularly the Directive Principles contained therein, are wiped off the statute book.
18. In view of the aforesaid discussion and parity of reasoningin Atam Parkash's case which applies with all forces to the instant case, I hold that the right of pre-emption based on agnatic rule of succession and consanguinity as contained in Section l4(b) firstly and fourthly of the Jammu and Kashmir Right of Prior Purchase Act, is unreasonable, unjustified and against the constitutional scheme. The same is declared as ultra vires and unconstitutional."
17. The contention of Mr.Sharma is that the judgment of Atam Parkash's case has not been correctly applied in Fazal Khan's case by this court and merits reconsideration. He submits that the Supreme Court examined the issue in the light of 42nd amendment of the constitution which has no application in State of Jammu & Kashmir and therefore the judgment of the Supreme Court could not be applied in the State for judging the vires of the provision.
18. I am not in agreement with Mr.Sharma. This Court has examined the issue in the light of the judgment rendered in Atam Parkash's case (supra) and in the light of the provisions of constitution of Jammu & Kashmir. I find no reason to differ with the view expressed by this court in Fazal Khan's case (supra). For the same reasoning as expressed by this court in Fazal khan's case the provision contained in Section 14(a) secondly cannot be upheld. On the parity of reasoning in Fazal Khan's case which applies with full force to the present case, I hold that right of pre-emption based on agnatic rule of succession and consanguinity as contained in Section 14(a) secondly of the J&K Right of Prior Purchase Act is unreasonable, unjustified and against the constitutional scheme. The same is therefore declared as ultra vires and unconstitutional.
19. Since the suits of the plaintiff-appellants have been dismissed by the courts below, therefore, in the aforesaid circumstances appeals of the appellants are dismissed. There shall, however, be no order as to costs.