Right Of Pre-Emption Is Extremely Weak; Filing Injunction Suit Without Pleading It Amounts To Waiver: J&K And Ladakh High Court
Isabella Mariam
The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Sanjay Dhar set aside the District Judge, Poonch’s 2001 decree granting possession to a claimant seeking to enforce a right of prior purchase over a share in a house and adjoining land sold to a purchaser. The Court held that the right of pre-emption is a weak right that a purchaser may lawfully defeat and that it can be given up through a pre-emptor’s conduct, depending on the case’s facts. On the evidence, the Court found that the pre-emptor, despite knowing of the sale, earlier sued only for permanent injunction against the purchaser without asserting pre-emption, amounting to waiver. The appeal was allowed and the deposited sale amount was directed to be refunded.
The dispute arose from the sale of a portion of a residential property situated in Poonch town. The plaintiff claimed a right of prior purchase in respect of the property, asserting that it was jointly purchased with the predecessor-in-interest of the vendor and remained unpartitioned. After becoming aware that the vendor intended to sell his share to a third party, the plaintiff issued a statutory notice expressing her intention to purchase the property. Despite this, the vendor executed a sale deed in favour of the appellant.
Following the sale, the plaintiff initially instituted a suit seeking an injunction to restrain alleged encroachment but did not seek enforcement of the right of prior purchase. That suit was later abandoned and dismissed for non-prosecution. Subsequently, within the limitation period, the plaintiff filed a separate suit seeking enforcement of the right of prior purchase. The trial court decreed the suit, holding that although the property stood partitioned, the plaintiff was entitled to pre-emption as the property constituted a single house/building. The purchaser challenged this decree in appeal.
The High Court examined the nature of the right of pre-emption and recorded that “the right of pre-emption is not a right to the thing sold but a right to the offer of a thing about to be sold” and that “the secondary right of pre-emption is simply a right of substitution, in place of an original vendee”. The Court further noted that “the right being a very weak right, it can be defeated by all legitimate methods”.
Referring to precedents, Bishan Singh vs. Khazan Singh and Barasat Eye Hospital vs. Kaustabh Mondal the Court observed that “right of pre-emption being a weak right, it can be defeated by all legitimate methods” and that “courts have not looked upon this right with great favour, presumably for the reason that it operated as a clog on the right of the owner to alienate his property”.
On the issue of waiver, the Court recorded that “once a plaintiff-pre-emptor chooses to waive his right of pre-emption, he loses that right for ever and could not raise the right in perpetuity”. Examining the conduct of the plaintiff, the Court noted that “in the said suit she did not even make a whisper about her intention to enforce her right of pre-emption”. It further recorded that “this conduct of the plaintiff/respondent No.1 allowed the appellant to believe that she had waived her right of pre-emption”.
The Court also took note of the plaintiff’s admissions and observed that “the plaintiff has admitted having filed the aforesaid suit and has also admitted its contents including the contents relating to the factum of partition of the property” and that “she later on abandoned the suit which was dismissed for non-prosecution”.
On estoppel, the Court observed that “the right of pre-emption can also be waived by the pre-emptor by his conduct which can be inferred from the facts and circumstances of a case”. It further stated that “rule of estoppel by acquiescence applies in cases of pre-emption”.
Addressing the equities involved, the Court recorded that “it will be highly inequitable to grant decree of possession of the suit property in favour of the plaintiff at this stage when more than 38 years have elapsed since the purchase of the suit property by the appellant” and that “asking him to vacate the said property by paying him a meagre sum of Rs.40,000/- would result in grave injustice to the appellant”.
Finally, the Court noted the legislative change and observed that “the J&K Right to Prior Purchase Act stands repealed after the coming into force of the J&K Reorganization Act, 2019” and concluded that “granting a decree of possession of the suit property in favour of the plaintiff on the basis of her right of pre-emption at this stage would be grossly inequitable”.
The High Court directed that “the present appeal is allowed” and that “the impugned judgment and decree dated 14.01.2001 passed by the learned trial court is set aside. The amount that has been deposited by the plaintiff with the trial court shall be refunded to her”.
Advocates Representing the Parties
For the Petitioners: Mr. K. L. Pandita, Advocate
For the Respondents: Ms. Mehrukh Syedan, Advocate
Case Title: Iqbal Singh v. Durga Devi and Others
Case Number: CFA No.19/2001
Bench: Justice Sanjay Dhar
