JUDGMENT
G.D. Sharma, J.
1. This is Civil 1st Appeal against the judgment and decree dated September 10, 1986 passed by the learned Additional District Judge, Jammu whereby he has decreed the preemption suit filed by Respondents Nos. 2 to 9. The facts of the case are that predecessor of Respondents Nos. 2 to 9, namely, Ved Parkash was a tenant of Respondent No. 1 in respect of two rooms and a Court-yard comprising of the house as delineated in the plaint. On 6-12-1979, the said house (inclusive of the demised premises) was sold by Respondent No. 1 to the appellant for a consideration of Rs. 20,000/-. The original owner had served ejectment notice on the said Ved Parkash whereby tenancy was terminated and he was asked to vacate the premises. Ved Parkash died and his legal heirs (Respondents Nos. 2 to 9) remained in possession of the demised premises and on sale of the house they filed suit for prior purchase of the demised premises. The suit was resisted by the appellant inter alia on various grounds including the denial of their status as tenants in respect of the premises in question. Preferential right of prior purchase to the right of Respondents Nos. 2 to 9 was also claimed by stating that the appellant had a common outer entrance with the sold premises which also served as servrent property to the dominant property owned by the appellant. On 28-4-81, the trial Court framed the following five issues :-
“1. Whether the plaintiffs are the tenants of the suit property and have a preferential right to purchase it? OPP
2. In case issue No. I is answered in the affirmative whether the plaintiffs have waived the right? OPD
3. In case issue No. I is proved whether defendant No. 2 is the owner of dominant heritage and the suit property being the servient heritage, defendant No. 2 hasapreferential right to purchase it? OPD.
4. Whether the suit has been incorrectly valued for purposes of Court-fee and jurisdiction? OPD.
5. Relief.”
2. On January 8, 1983 additional issue was
framed and the same was numbered as issue No.
5. Previous Issue No. 5 was renumbered as issue
No. 6. New issue was in the following effect:-
“5. Whether defendant No. 2 had a preferential
right to purchase the suit property on account of the fact that his property has/had common outer entrance with the suit property? OPD.”
3. The parties led evidence on the above stated issues and the trial Judge (learned Additional District Judge, Jammu) decreed the suit in favour of Respondents Nos. 2 to 9 as has already been stated. Through the medium of this appeal, the judgment and decree has been challenged on the following grounds :-
(i) Respondents Nos. 2 to 9 are not tenants of the suit properly within the meaning of Sec. 15(6) of Right of Prior Purchase Act (hereinafter to be referred as Act) because the tenancy of their predecessor namely, Ved Parkash stood validly terminated and they were only statutory tenants.
(ii) The appellant is the owner of dominant heritage and the demised premises the servient heritage. Besides this, the sold house has a common outer entrance with the house of the appellant. On the premises stated above, the appellant has a preferential right of prior purchase as compared with Respondents Nos, 2 to 9.
(iii) The original owner of the demised premises in question at the time of proposed sale had given its notice to Respondent No. 2, but she had declined to be a willing purchaser. Respondents Nos. 2 to 9 thus had waived their right of prior purchase.
Heard the arguments.
4. The counsel for the appellant at the outset has contended that Respondents Nos. 2 to 9 are incompetent to pre-empt the property in question because they arc statutory tenants and cannot be equated with a “tenant occupant” which term has been used in ground “sixthly” of Section 15 of the Act. They are in occupation of the premises because Section 11 of the J. and K. Houses and Shops Rent Control Act prohibits ejectment except otherwise by following the prescribed procedure of law.
Ground “Sixthly” was substituted by Act No. XXIX of 1973 and a “tenant occupant” of urban immovable property was given the right of prior purchase in case the demised property was made the subject matter of sale. At the time of said amendment, the J. and K. Houses and Shops Rent Central Act was already in force but it was not correspondingly amended. According to the learned counsel, the intention of the legislature was to draw adistinction between the term tenant as used in the Act as well as in the J. and K. Houses and Shops Rent Control Act. To buttress his contention, the learned counsel tried to draw support from the case of Anand Niwas Pvt. Ltd. v. Kalyan Ji Anand Ji, AIR 1965 SC 414 wherein the Supreme Court has held that a statutory tenant only enjoys the protection from eviction under a particular statute and no estate or interest in property is vested in him. He has also cited the case of Bishwabani Pvt. Ltd. v. Santosh Kumar Dutta, 1980 (1) SCC 185 : (AIR 1980 SC 226} where the Apex Court has held that there is no bar in law against the statutory tenant entering into fresh lease: Continuing his submissions, the learned counsel has urged that in the instant case, the original owner namely, Wazir Ajay Vir Chand had terminated the tenancy by serving a notice on Ved Parkash and filed the suit for ejectment but as no decree was passed and the appellant was withdrawing the deposited rent so it was purely a case of statutory tenants and not of tenants in occupation of the demised premises.
5. In rebuttal, the learned counsel for Respondents Nos. 2 to 9 has submitted that ground “Sixthly” engrafted in Sec. 15 of the Act recognises only one tenant i.e. “tenant occupant” and does not draw any distinction between a tenant and a statutory tenant. Since the Act does not define the term “Tenant” so to derive its meaning reference has to be made to sub-clause (2) of Section 6 of the J. and K. Houses and Shops Rent Control Act, where, “a tenant” “includes a legal representative of a tenant and a person continuing in possession after termination of tenancy in his favour.” Respondents Nos. 2 to 9 are the legal representatives of the original tenant and in continuing possession of the demised premises even after the alleged termination of tenancy so they are as good tenants as their predecessor Ved Parkash used to be.
6. After considering the above submissions, the legal position which emerges is that in the absence of any judicial verdict that tenancy stood terminated or surrendered, it cannot be said that Respondent Nos. 2 to 9 stand on different footing as tenants than their predecessor namely, Ved Parkash. When the Act is silent in defining the term “Tenant” support can be taken from the provisions of J. and K. Houses and Shops Rent Control Act in order to understand the true meaning because respondents have acquired the status of “statutory tenants” under that Act. In the present case, no evidence has been shown which establishes that tenancy in question was validly determined. Mere service of an ejectment notice does not prove the fact that tenancy stood terminated. The ratio of the case of Anand Niwas Pvt. Ltd. (supra) is that after the determination of tenancy the tenant becomes statutory tenant and he can remain in possession but cannot enforce the terms of original tenancy. In the present case, there is no dispute for enforcing the terms of the original tenancy. The principle laid down by the Supreme Court in the case of Bishwabani Pvt. Ltd. (supra) is that there is no bar in law against the statutory tenant entering into fresh lease. In the instant case, no claim is being made out from either side for entering into fresh lease. When this is the admitted position, it is said with certainty that above staled rulings cited at the bar have no application to the present controversy and in no manner they advance the case of the appellant. On this view of the matter, it is held that the Act does not draw any distinction between a tenant and a statutory tenant but the only qualification which a tenant should possess is that he should be in occupation of the premises in question. Like other pre-emptors, he should enjoy this status at the time of filing of the suit, during the currency of the proceedings as well as at the time of the passing the decree and its execution. In case, “a tenant occupant” ceases to be tenant in occupation of the premises at any of the above stated three stages, his case will fail. With these observations, the findings of the trial Court on issue No. 1 are confirmed. Issue No. 2
7. The appellant before the trial Court had taken the plea that Respondents Nos. 2 to 9 had waived their right of prior purchase because on the offer of sale being made by the original owner to Respondent No. 2 she had rejected the same. . This controversy had found place in issue No. 2. The appellant had failed to substantiate this plea before the Trial Court. The counsel of the appellant has reiterated the plea by submitting that Sh. M. K. Wazir (guardian of Respondent No. 1) in his deposition had stated that before effecting the sale of the demised premises Respondent No. 2 herein was approached to purchase the house in question but the offer was turned down on the
plea that sale consideration could not be arranged. The trial Court wrongly has not taken thisevidence into consideration when it was of credulous nature because the deponent (Mr. M. K. Wazir) was a man of high status (retired Chief Engineer of J. & K. Slate) and an independent witness.
8. On the other hand, the counsel for the respondents has contended that there could be no waiver of the right of prior purchase because no notice as is contemplated Under Section 18 of the Act was given. According to the showing of Mr. M. K. Wazir, he had not personally approached Smt. Bimla Devi (Respondent 2 herein) but his agent had asked her to purchase the house in question. From the perusal of his statement, it transpires that nobody had made an offer to any of the respondents proposed sale price. One of the essential prc-requisites forgiving notice Under Section 18 of the Act is the disclosure of the price at which the vendor proposes ro sell the property in question. This basic element is missing in this case. Moreover, Mr. M. K. Wazir had not himself made any offer and his evidence falls within the category of hearsay evidence. The Board of Judicial Advisors in the case of Ghulam Haider Bhat v. Smt. Mali (1949-50) 8 J and K Law Reports 62 has held that in order to find a plea of waiver of a right of prior purchase in relation to a sale before the sale is completed, there must be representation express or implied, on the part of the pre-emptor not to claim the right of prior purchase or to accept the proposed sale by a vendor to a stranger as binding upon him. The representation may be implied and may arise by conduct but it must lead to a necessary inference that the right has been waived. In the present case on facts it is not established that there was any representation on the proposed sale. The argument is being advanced without the basis of any record and is devoid of legal force. The findings of the Trial Court on the issue are confirmed.
9. The third argument advanced by the learned counsel for the appellant is that the appellant is the owner of dominant heritage and has common outer entrance to his house with the sold premises. Under Section 15 of the Act, he gets a preferential right to pre-empt the demised premises because grounds “fourthly” and “fifthly” are available to him whereas Respondents Nos. 2 to 9 fall under ground “Sixthly”. The trial Court on the appreciation of evidence has found that the appellant and Respondents Nos. 2 to 9 had no common outer entrance of their properties as well as this was not a sale of a servient property where appellant could claim the right of prior purchase on the basis of the ownerof the dominant property. In the site attached with the sale deed or in the contents of the sale deed nowhere it is stated that there was a common passage leading to the house of the appellant as well as to the premises under the occupation of Respondents Nos. 2 to 9. Wazir Mohan Krishan who was the original owner of the house purchased by the appellant as well as the demised premises is the best person to depose about the factual aspect and he has testified that when both the houses were with him they had a common passage besides a separate passage leading to the house owned by the appellant. In the year 1973-74, he sold a portion of the house to Ram Rattan who after some time sold the house to the appellant which is now in his possession. He is claiming the right of prior purchase being the owner of that house. Mr. Wazir has also stated that after purchasing that house, the appellant demolished the same and raised a new construction on its place. He has not stated that after constructing the new house, the common outer entrance remained unaltered and was being used by the parties. The appellant when purchased his house from Ram Rattan had a separate passage to his house. He demolished the house and raised new construction. Under these circumstances heavy burden was on the appellant to be discharged that even after demolition of old house and erection of a new house on its place, the common outer entrance had remained in existence. This controversy was covered under issue No. 5 and the burden of proof was on the appellant. The trial Court after appreciation of evidence has rightly arrived at the conclusion that there did not exist any common outer entrance. There is found no evidence of better quality to disturb this finding of fact arrived at by the Court below. Accordingly, findings on issue No. 5 are confirmed.
10. The appellant is also claiming his preferential right on the basis of being an owner of dominant heritage and the suit property being servient heritage. The terms, “servient property” and “dominant property” have not been defined in the Act, but their definition is found in the Easement Act. Section 4 defines that, “land for the beneficial enjoyment of which the right exists is called the dominant heritage and the owner or occupies thereof the dominant owner, the land on which the liability is imposed iscalled the servient heritage and the owner or occupier thereof the servient owner. In explanation the expression, “land” includes also things permanently attached to earth; the expression, “beneficial enjoyment” includes also possible convenience, remote advantage and even a mere amenity; and the expression “to do something” includes removal and appropriation by the dominant heritage of any part of the soil of the servienl heritage or anything growing or subsisting thereon.
11. On this controversy issue No. 3 was raised in the Court below and the onus of proof was on the appellant. The trial Court on the basis of evidence of the parties has decided that no such right existed because the house of the appellant as well as the demised premises were not owned by two different persons for a continuous period of 20 years. Such an casementry right could be claimed after uninterrupted and continuous enjoyment for 20 years. In this case, the house owned by the appellant as well as the house in question (inclusive of demised premises) were jointly owned before 25-3-74 by Respondent 1. On 25-3-74, the house which is now being owned by the appellant was sold by Respondent No. 1 in favour of one Ram Rattan who in the month of June, 1974 sold the same to the appellant. In the month of December 1979, Respondent No. I sold the demised premises including other portions of the house to the appellant. The trial Court after appreciating the factual and legal aspects of the case has arrived at the conclusion that the appellant is not the owner of dominant heritage where the demised premises can be said as “servient heritage”. The trial Court has decided issue No. 3 against the appellant. This finding is factually and legally correct and is accordingly confirmed.
12. The appellant before the trial Court had also taken the plea that the suit was incorrectly valued for the purposes of Court-fee and jurisdiction. This assertion was denied by the contesting respondents and accordingly issue No. 4 was framed. The appellant had to prove the issue but had failed to do so. The Court had decided the issue against the appellant. Rather, it was held that the suit was correctly valued for the purposes of Court-fee and jurisdiction. The appellant has not challenged the findings of this issue.
13. On the above said discussion being made on issues Nos. 1, 2, 3 and 5 there is found no force in this appeal which is dismissed. The judgment and decree of the trial Court is confirmed. In the circumstances of the case the parties are left to bear their own costs.