{"id":272029,"date":"2004-04-27T00:00:00","date_gmt":"2004-04-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/j-c-sehgal-vs-devi-dass-ors-on-27-april-2004"},"modified":"2016-08-23T07:29:00","modified_gmt":"2016-08-23T01:59:00","slug":"j-c-sehgal-vs-devi-dass-ors-on-27-april-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/j-c-sehgal-vs-devi-dass-ors-on-27-april-2004","title":{"rendered":"J.C. Sehgal vs Devi Dass & Ors on 27 April, 2004"},"content":{"rendered":"
Supreme Court of India<\/div>\n
J.C. Sehgal vs Devi Dass & Ors on 27 April, 2004<\/div>\n
Author: . A Lakshmanan<\/div>\n
Bench: S. Rajendra Babu, Dr. Ar. Lakshmanan, G.P. Mathur.<\/div>\n
           CASE NO.:\nAppeal (civil)  2713-14 of 2004\n\nPETITIONER:\nJ.C. Sehgal\n\nRESPONDENT:\nDevi  Dass  & Ors.\n\nDATE OF JUDGMENT: 27\/04\/2004\n\nBENCH:\nS. Rajendra Babu, Dr. AR. Lakshmanan & G.P. Mathur.\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
(Arising out of S.L.P.(C)Nos. 21469-21470 of  2002)<\/p>\n
Dr. AR. Lakshmanan, J.\n<\/p>\n
Leave granted.\n<\/p>\n
These two appeals arise out of S.L.P.(C) Nos. 21469-21470 of 2002 and filed
\nagainst  the judgment and final order dated 10.10.2002 passed by the High Court of
\nJammu and Kashmir at Jammu in C.R. No.231 of 2001 and C.R.No.4 of 2002, whereby
\nthe High Court dismissed the revision petition bearing C.R.No. 231 of 2001 of  the
\nappellant herein  J.C. Sehgal and allowed  the revision petition bearing C.R.No.4 of
\n2002 filed by respondent No.1  Devi Dass.\n<\/p>\n
The short background facts of the case are as under:\n<\/p>\n
One Abdul Rouf Ahmed was the owner in possession of four rooms along with
\nland appurtenant thereto.  One of the said rooms and some portion of the land was
\ngiven to one Raj Kumar on rent as tenant.  The aforesaid Abdul Rouf Ahmed sold the
\nentire property to one Issar Dass.  Respondent Nos.2 to 5 herein are the legal heirs of
\nthe aforesaid Issar Dass.  The tenant Raj Kumar accepted late Issar Dass as his
\nlandlord and a fresh rent note was executed during 1967.  During the subsistence of the
\ntenancy of the aforesaid Raj Kumar, late Issar Dass divided the entire property in four
\nseparate portions.  The portion under the tenancy of aforesaid Raj Kumar was sold by
\nlate Issar Dass to one Ved Paul  Gupta through a sale deed dated 20.3.1977 which was
\nchallenged by respondent No.1 herein by way of pre-emption suit by taking recourse to
\nthe provisions of J & K Rights of Prior Purchase Act.  The sole ground taken in the suit
\nwas that the property purchased by aforesaid  Ved Paul was contiguous to the land
\nbelonging to the plaintiff (respondent No.1) as the parnallas of his house were flowing
\ntowards the property sold.  However, the defendants in the suit did not appear in the
\ncase and did not defend the suit filed by respondent No.1 herein.  During the pendency
\nof the pre-emption suit, Ved Paul, who constructed on the suit property, sold the same
\nto one  Shashi Kant vide sale deed dated 19.5.1978.  This fact was within the
\nknowledge of  the plaintiff\/respondent No.1 herein.  The aforesaid Shashi Kant, in turn,
\nsold the suit property to Raj Kumar who was already in possession of the suit property
\nas tenant and continued to remain as tenant till the property was purchased by  him.
\nRaj Kumar purchased the suit property vide sale deed dated 1.7.1981.  The trial Court,
\non the basis of the evidence,  passed a judgment on 13.12.1984 decreeing the suit, the
\ncopy of  which has been filed as Annexure-P\/1.  On 17.1.1998, the appellant  herein
\npurchased the suit property from the aforesaid Raj Kumar through a sale deed for
\nvaluable consideration.   According to the appellant,  he had no knowledge about the
\npendency of the pre-emption proceedings or the order passed thereon.  On 20.8.2000,
\nrespondent No.1 herein filed a petition for execution before the trial Court.  The trial
\nCourt vide its order dated 28.8.2000 issued a warrant of possession.  On coming to
\nknow of the execution proceedings, the appellant herein filed an application raising
\nvarious grounds under Order XXI Rule 58, 99 and 101 of C.P.C. and prayed for stay of
\nthe operation of warrant of possession.  The appellant further brought to the notice of
\nthe executing Court that he has already challenged the decree in a separate suit and
\nthe same is pending for consideration.  On 19.12.2000, the appellant filed a separate
\nsuit for declaration and perpetual injunction challenging the decree obtained by
\nrespondent No.1 herein.  The trial Court by its order dated 19.12.2000 granted the
\ntemporary injunction and stayed the execution proceedings.  Later the trial Court by its
\norder dated 13.11.2001 vacated the interim order granted on 19.12.2000.  The trial
\nJudge, by a separate order dated 13.11.2001, rejected the application of the appellant
\nfiled under Order XXI Rule 58, 99, 101 read with Sections 94 and 151 of the C.P.C.
\n(Annexure-P\/3).  The appellant preferred an appeal before the Additional District Judge
\nchallenging the orders of the sub-Judge, who vacated the temporary injunction.  The
\nIInd  Additional District Judge by his order dated 4.12.2001, granted interim order after
\nhearing the appellant herein.  The appellant preferred a revision petition before the High
\nCourt challenging the judgment of the sub-Judge dated 13.11.2001 against the interim
\norders of the IInd  Additional District Judge in the application filed under Order XXI Rule
\n58, 99, 101 read with Section 94 and 151 of C.P.C.  Respondent No.1 herein also filed
\na revision petition before the High Court against the interim orders of the IInd Additional
\nDistrict Judge.  The District Judge allowed the appeal and stayed the execution of the
\nex parte decree till the final decision of the suit.  The High Court took both the petitions
\nfor hearing and by its judgment dated 10.10.2002 rejected the civil revision petition
\nbearing No. C.R.231\/2001 holding that there is no merit in the revision petition and
\nallowed the revision petition filed by respondent No.1 herein bearing C.R.No.4\/2002 in
\nview of the dismissal of the revision petition filed by the appellant  herein.  According to
\nthe appellant, the High Court failed to consider that the revision petition bearing
\nNo.C.R.4\/2002 filed by respondent No.1 herein had become infructuous as the
\nappellate Court disposed of the appeal on 4.10.2002 itself and, therefore, nothing
\nsurvives in it.  Further, respondent No.1 did not challenge the order dated 4.10.2002
\npassed by the Additional District Judge.  It was further submitted that the High Court did
\nnot consider the various issues raised by the appellant in his revision petition.  Being
\naggrieved by the order passed in C.R.No.231\/2001 and C.R.No.4\/2002, the above
\nappeals have been filed.\n<\/p>\n
We heard Mr. Ranjit  Kumar, learned senior counsel appearing for the appellant
\nand Mr. Gopal Jain, learned counsel appearing for the respondents.
\nOur attention was drawn to the relevant pleadings filed in this case and the
\njudgment and orders passed by the High Court and the lower Courts and also to the
\nannexures.\n<\/p>\n
Mr. Ranjit Kumar, learned senior counsel appearing for the appellant, submitted
\nthat the High Court was not justified in not considering the various pleas raised by the
\nappellant as available to him under Order XXI Rule 58, 99 and 101 of C.P.C.  According
\nto him, the Courts below are not justified in rejecting the petitions on the ground that the
\npurchase of the suit property by the appellant was hit by principles of lis pendens  and
\nwhether the lis pendens is applicable to the facts of the present case.  It was further
\nsubmitted that the High Court was not  justified in entertaining C.R.No.4\/2002 filed by
\nrespondent No.1 herein challenging the interim order which has become infructuous as
\nthe appellate Court disposed of the appeal itself by its judgment dated 4.10.2002.  He
\nfurther submitted that the Courts below have committed error in executing decree
\nagainst the appellant  who was not a party to decree and the present decree  was
\npassed on one-sided evidence only and that the Courts below are not justified in not
\nconsidering the fact that the decree holder voluntarily admitted and accepted the
\nappellant as tenant qua the property in question.\n<\/p>\n
Per contra, Mr. Gopal Jain, learned counsel appearing for the respondent,
\nsubmitted that the water parnallas  were fitted to the property long before the sale of the
\nproperty to the appellant.  The water of parnallas  passes through the property of the
\nappellant and that the order of the sub-Judge in the pre-emption suit filed by respondent
\nNo.1, clearly takes into account the fact that the property of respondent No.1 is in the
\nvicinity of the house of the appellant and that the parnallas fitted in the roof pass
\nthrough the said property, therefore, it is proved that the property of respondent No.1 is
\nthe dominant property and hence respondent No.1 has a right of prior purchase under
\nSection 15(5) of the Prior Purchase Act.  It was held that no notice of the sale of the
\nproperty was given to respondent No.1 even when he was ready and willing to offer the
\nprice for the property.  According to  learned counsel appearing for the respondents, the
\nHigh Court   has rightly held that the appellant cannot be said to have improved his right
\nby purchasing the property from Raj Kumar and the High Court was further correct in
\nholding that the improvement in status for the purpose of Section 15(5) of the Prior
\nPurchase Act can only be applicable to Raj Kumar and the appellant having purchased
\nthe property from Raj Kumar cannot and would not fall under Section 15(5) of the Prior
\nPurchase Act.  Argued further,  learned counsel submitted that the High Court was right
\nin holding that once the order in execution petition of the sub-Judge dated 13.11.2001
\nwas upheld, it would not be apt to give any further life to the interim order dated
\n13.11.2001 passed by the   IInd Additional District Judge, Jammu.  He further submitted
\nthat the decree dated 13.12.1984 was not challenged  and , therefore, attained finality
\nwith the efflux of time and any argument regarding raising of permanent structure etc.
\nby the appellant  cannot be sustained at the belated stage.
\n\tMr. Ranjit Kumar, learned senior counsel, drew our attention to the following
\nimportant events  from the rejoinder affidavit:\n<\/p>\n
(a)\tThe respondent filed suit against Ved Paul on 19.5.1978.\n<\/p>\n
(b)\tDuring the pendency of the suit, the suit property was sold to one Shashi Kant.
\nThe aforesaid suit property was again came to be sold to one  Raj Kumar on
\n1.7.1981.  However, none of these two subsequent purchasers were made
\nparties to the suit.   The defendant-Ved Paul having sold the suit property did
\nnot prosecute the suit.\n<\/p>\n
(c)\tThe suit of the respondent came to be allowed on 13.12.1984 ex parte.\n<\/p>\n
(d)\t Though the suit was decided on 13.12.1984, the respondent decree holder did
\nnot seek execution of the same for a considerable time (till 28.8.2000).\n<\/p>\n
(e)\tIn the meantime, the purchaser of the aforesaid suit property, Raj Kumar, sold
\nthe suit property to the appellant herein on 17.1.1998.\n<\/p>\n
(f)\tThe respondent initiated execution proceedings only on 28.8.2000 seeking
\nexecution of the order dated 13.12.1984.\n<\/p>\n
(g)\t The appellant having come to know of the decree dated 13.12.1984 and also
\nthe execution proceedings initiated by respondent No.1, the appellant made
\napplication before the executing Court objecting to the execution.  As the
\nexecuting Court cannot go behind the decree, the application was rejected.\n<\/p>\n
(h)\tThe appellant, in these circumstances, filed a suit for declaration and perpetual
\ninjunction challenging the decree dated 13.12.1984.  The trial Judge granted
\ninterim stay.    However on 13.12.1984, the trial Court vacated the stay.\n<\/p>\n
(i)\tThe appellant preferred an appeal against the order of vacating stay.  The IInd
\nAdditional Judge  granted interim stay on 4.12.2001.\n<\/p>\n
(j)\tThe aforesaid interim stay was challenged by the respondent before the High
\nCourt.    During the pendency of the aforesaid proceedings, the Additional
\nDistrict Judge passed an order dated 4.10.2002 and made the interim stay
\nabsolute.\n<\/p>\n
(k)\tThe High Court, vide its impugned judgment, set aside the interim order dated
\n4.12.2001 and also set aside the order dated 4.10.2002, though the order dated
\n4.10.2002  was not impugned before it.\n<\/p>\n
(l)\tIt is also a fact that the decree dated 13.12.1984 was ex parte and the trial
\nCourt had no opportunity of considering the other side of story.  The trial Court
\nallowed the suit ex parte in the absence of objections.\n<\/p>\n
In reply to the preliminary submissions made by the counsel for the respondents,
\nlearned  senior counsel appearing  for the appellant submitted that the decree dated
\n13.12.1984 is ex parte decree and, therefore, the sub-Judge relied upon the
\ncontentions of the plaintiff before him and that the appellant herein has already filed
\na suit giving the complete facts of the case.  It was further submitted that respondent
\nNo.1 made false allegation about the existence of his house and parnallas on the
\ndate of institution of the suit for pre-emption.  In fact, no house was in existence at
\nthe time of the suit during 1978 nor any house is existing even today on the portion
\nof respondent No.1.  Hence, it was submitted that the ground of pre-emption by
\nrespondent No.1 had no leg to stand in law and, therefore,  respondent No.1 lost his
\nright of prior purchase with respect to the suit property.  It was further submitted that
\nthe appellant was not a party to the decree dated 13.12.1984 and defendant No.1,
\nwho had already  sold the  suit property during the pendency of the suit has not
\nprosecuted the suit.  Respondent No.1, who had the knowledge of the subsequent
\nsales had never taken steps to implead the subsequent purchasers.  Hence it was
\nsubmitted that the appellant is entitled to file a suit and challenge the decree and
\ncan also take all the pleas available to him.\n<\/p>\n
We have briefly set out the facts of this case and also the contentions raised by
\nthe counsel appearing on either side with reference to pleadings and documents
\nand also with reference to the proceedings before the Courts below.  We shall now
\nconsider the respective submissions.\n<\/p>\n
As already noticed, two civil revision petitions were filed before the High Court ,
\nOne  was filed by the appellant  herein, being C.R. No.231 of 2001,   against the
\norder of the sub-Court dated 13.11.2001 whereby   the trial Court rejected the
\napplication of the appellant filed under Order XXI Rules 58, 99 and 101 of the
\nC.P.C. challenging the execution proceedings pursuant to the decree dated
\n13.12.1984, which decree was put into execution only in the year 2000 though the
\ndecree was of 1984.    The second revision petition  being C.R.No.4\/2002, was filed
\nby respondent No.1 herein challenging the interim order of the IInd Additional
\nDistrict Judge, Jammu dated 4.12.2001 passed in appeal preferred by the appellant
\nunder Order XXXXIII Rule 1(r) of the C.P.C.  These appeals are against the order of
\nthe learned sub-Judge, Jammu, who had dismissed the prayer for injunction under
\nOrder XXXIX Rules 1 and 2 filed by the appellant herein in his suit, the suit having
\nchallenged the decree dated 13.12.1984.  The Additional District Judge, in appeal,
\npassed an interim order staying the execution proceedings.  The High Court vide its
\nimpugned judgment dismissed the civil revision preferred by the appellant herein
\nand allowed the civil revision preferred by respondent No.1 herein.     The decree
\nthat was challenged by the appellant in a suit was passed on 13.12.1984 in a suit for
\npre-emption filed by respondent No.1 herein under the provisions of the J & K Right
\nof Prior Purchase Act, 1936 (In short, “the Act”) wherein the plaint averments were:
\n“In the plaint, it has been averred by the plaintiff  that he owns a
\nhouse situated at Mohalla Mastgarh, Jammu, whereas defendant
\nNos. 1 and 2 owned a house and a vacant piece of land in the same
\nlocality  which is contiguous to the house of the plaintiff; that all the
\nparnallas of his house flow towards the land of defendant No.2 since
\nthe construction of his house and his house is also contiguous’ to the
\nhouse of the defendant and as such is vested with the right of pre-
\nemption in the house of defendant No.2.”  (Emphasis  supplied)<\/p>\n
The suit was filed on 17.3.1978 wherein averment was to the aforesaid effect.
\nThe provision of law as existing under the Act vide Section 15 thereof, as amended
\nin 1973, reads as under:\n<\/p>\n
“15  Persons in whom right of prior purchase vests in Urban
\nImmovable Property  the right of prior purchase in respect of urban
\nimmovable property shall vest.\n<\/p>\n
Firstly  in the co-sharers of such property, if any;\n<\/p>\n
Secondly  where the sale is of the site of the building or
\nstructure, in the owners of such building or structure;\n<\/p>\n
Thirdly  where the sale is of property having a stair case
\ncommon to other properties, in the owners, of such properties;
\nFourthly  where the sale is of property having a common outer
\nentrance with other properties, in the owners of such properties;
\nFifthly  where the sale is of a servient property in the owners of
\nthe dominent property and vice-versa;\n<\/p>\n
Sixthly  in the tenant occupant thereof.”\n<\/p>\n
However, earlier, prior to 1973 amendment, stood as under:
\n“15  Persons in whom right of prior purchase vests in Urban
\nImmovable Property  The right of prior purchase in  respect of
\nUrban Immovable Property shall vest <\/p>\n
Firstly  in the co-sharers of such property, if any;\n<\/p>\n
Secondly  where the sale is of the site of the building or
\nstructure, in the owners of such building or structure;\n<\/p>\n
Thirdly  where the sale is of property having a stair case
\ncommon to other properties, in the owners, of such properties;\n<\/p>\n
Fourthly  where the sale is of property having a common outer
\nentrance with other properties, in the owners of such properties;\n<\/p>\n
Fifthly  where the sale is of a servient property in the owners
\nof the dominant property and vice versa;\n<\/p>\n
Sixthly  in the owners of property contiguous to the property
\nsold.”\n<\/p>\n
Thus what appears to have been amended in 1973 is clause `sixthly’ only.  It
\nwould be seen that the suit had been filed in 1978 claiming pre-emption under a law
\nthat existed prior to the amendment in 1973.  After 1973, there is no provision, as
\naforesaid, in the Act for an owner of a property contiguous to the property sold to
\nseek pre-emption.   Thus the plaintiff asked for grant of a decree under clause
\n`sixthly’ of the un-amended Section 15 (as existed prior to 1973).  However, the
\ndecree that was passed was on the basis of clause `fifthly’ of Section 15 as would
\nbe found from paragraph of the judgment of the sub-Judge, Jammu which reads as
\nunder:\n<\/p>\n
“From the  statement of the plaintiff, which is supported by as
\nmany as four witnesses produced by him namely, PW 1 Amar Nath,
\nPW 2 Pradeep Kumar, PW 3 Mast Ram and PW 4 Preetam Singh
\nduring the trial, who in one voice have stated that the suit property is
\nquite in the vicinity of the plaintiff’s house and the water of the
\nparnalla fitted in the roof of the plaintiff’s house passes through the
\nsuit property, it stands proved that the plaintiff’s house is the
\ndominant property to the suit property and as such the plaintiff has
\nright of prior purchase under Section 15(5)  of Prior Purchase Act.”\n<\/p>\n
Thus though the decree was sought on a non-existent provision of law, the Court
\ngranted it on  a  provision which was not the case of the plaintiff-respondent No.1.
\nThis decree was the subject matter of the challenge in two suits, one was filed
\nby Raj Kumar, the vendor of the appellant herein, seeking a declaration that the
\ndecree passed by the Court of sub-Judge, Jammu, on 13.12.1984 in  Civil Suit
\nNo.177\/78 be declared null and void and unexecutable. This suit is still pending.
\nSubsequently, the appellant herein also filed a suit being – File No. 48 – Civil Suit
\ntitled J.C. Sehgal vs. D.D. Abrol and Ors<\/a>., praying for a suit for declaration and
\npermanent injunction on the ground that the decree is a nullity as it had been
\npassed without jurisdiction on a void clause of contiguity-cum-vicinage and that it
\nhad been passed on the grounds of wilful fraud, deception and misrepresentation of
\nfacts.  It is important to state here that the learned Sub-Judge, Jammu, in his order
\ndated 13.11.2001 on the application filed under Order XXI Rule 58 has noted at
\npages 51-52 in para 7 as under:\n<\/p>\n
“It is no doubt true that ground of prior purchase in respect of
\nvicinage has been repealed but the question is whether the decree
\ndated 13.12.1984 passed by this Court was on the ground of
\nvicinage or on the ground mentioned in Section 15(5) of the Prior
\nPurchase Act.  A bare perusal of the judgment dated 13.8.1984
\nreveals that judgment and decree has been passed in terms of
\nSection 15(5) of Right of Prior Purchase Act on the ground that
\nplaintiff’s house is the dominant property to the suit property and the
\nwater of the parnallas of the house of the decree holder passes
\nthrough the suit property.  The contention of the learned counsel for
\nthe applicant that the decree has been passed on the ground of
\nvicinage is without merit.  Though, it has been mentioned in the suit
\nas well as in judgment that suit property is contiguous to the house
\nof plaintiff, but by no stretch of imagination, it can be said that
\ndecree has been passed on the ground of vicinage.”\n<\/p>\n
[Emphasis supplied]<\/p>\n
Thus, it is seen that though respondent No.1 had sought pre-emption on a non-
\nexistent provision of law, as seen earlier, the Court granted such pre-emption
\ndecree on another ground which had not been argued and thus the said decree was
\nthe subject matter of challenge in the two suits, as aforesaid.\n<\/p>\n
This apart, that if the decree which was sought to be executed, 16 years after
\nthe decree of the year 1984 is executed in 2000, the appellant, who is in
\npossession, would be dispossessed from the property pending disposal of the suit
\nfiled by the appellant, especially when such decree is sought to be executed is a
\nnullity on account of the fact submitted in the legal submissions made.\n<\/p>\n
Learned counsel for the respondent, in fact, has fairly conceded at the time of
\narguments by the respondent’s counsel that the civil revision preferred by the
\nrespondent herein was against the interim order passed by the IIIrd Additional
\nDistrict Judge, Jammu, dated 04.12.2001 granting stay of execution proceedings
\npending the suit of the appellant herein.\n<\/p>\n
In that Civil revision, the High Court did not pass any stay order.  The IIIrd
\nAdditional District Judge went on to pass a final order in that appeal under Order
\nXXXXIII Rule 1 (r) on 04.10.2002 making the stay absolute pending the suit of the
\nappellant herein.  This order dated 04.10.2002 was never challenged before the
\nHigh Court.  These facts would be apparent from the judgment of the High Court
\nitself.  It was contended before the High Court that how could the order dated
\n04.10.2002 be set aside when the same was not the subject-matter of challenge
\nbefore the High Court.  The High Court, however, held as under:
\n“However, without commenting on this controversy so far as the
\nabove aspect of the matter is concerned, to say that once a
\nsubordinate Court whose interim order is subject matter of challenge
\ndecides a matter finally and that should deprive this Court from
\npronouncing upon the correctness of proceedings is an argument
\nwhich cannot be sustained.  By this process, a subordinate Court
\ncannot be given a handle to put the superior Court in a position
\nwhich disenables it from pronouncement upon the validity or
\ncorrectness of an order.”\n<\/p>\n
It was submitted that the above finding is an erroneous finding of the High Court
\nas fairly submitted by the counsel for the respondent herein, inasmuch as when the
\nHigh Court did not stay the proceedings before the IIIrd Additional District Judge and
\nthe order passed by the Third Additional District Judge was not challenged or
\nappealed against and only the interim order was appealed against.  The High Court
\nought not to have set aside the order dated 04.10.2002, the final order passed by
\nthe Third Additional District Judge as has been done by the High Court in the
\noperative portion of its judgment.\n<\/p>\n
In the instant case, respondent No.1 is seeking to enforce the right of pre-
\nemption which this court had held in several decisions to be a very weak right. In
\nBhau Ram vs. B. Baijnath Singh<\/a>, (1962) Supp. 3 SCR 724, this Court held at
\npages 740-741 as under:\n<\/p>\n
“The question as to the constitutionality of a law of pre-emption
\nin favour of a co-sharer has been considered by a number of High
\nCourts and the constitutionality has been uniformly upheld.  We
\nhave no doubt that a law giving such a right imposes a reasonable
\nrestriction which is in the interest of the general public.  If an outsider
\nis introduced is a co-sharer in a property it will make common
\nmanagement extremely difficult and destroy the benefits of
\nownership in common.  The result of the law of pre-emption in
\nfavour of a co-sharer is that if sales take place the property may
\neventually come into the hands of one co-sharer as full owner and
\nthat would naturally be a great advantage the advantage is all the
\ngreater in the case of a residential house and s.16 is concerned with
\nurban property; for the introduction of an outsider in a residential
\nhouse would lead to all kinds of complications.  The advantages
\narising from such a law of pre-emption are clear and in our opinion
\noutweigh the disadvantages which the vendor may suffer on account
\nof his inability to sell the property to whomsoever he pleases.  The
\nvendee also cannot be said to suffer much by such a law because
\nhe is merely deprived of the right of owning an undivided share of
\nthe property.  On the whole, it seems to us that a right of pre-
\nemption based on co-sharership is a reasonable restriction on the
\nright to acquire, hold and dispose of property and is in the interests
\nof the general public.”\n<\/p>\n
We are of the opinion that the Courts below are not justified in executing the
\ndecree against the appellant who was not a party to the decree.  Likewise, the High
\nCourt is not justified in entertaining C.R. No. 4 of 2002 which challenges the interim
\norder which has become infructuous as the appellate Court disposed of the appeal
\nitself by its judgment dated 04.10.2002.  The High Court while interfering with the
\ninterim orders dated 04.12.2001 has no right to set aside the final judgment of the
\nappellate Court dated 04.10.2002 which has not been challenged before the High
\nCourt.\n<\/p>\n
As already noticed, one suit was filed by Raj Kumar, the vendor of the appellant
\nherein seeking a declaration that the decree passed by the Sub-Judge, Jammu, on
\n13.12.1984 in Civil Suit No. 177\/78 be declared null and void and unexecutable.
\nThe appellant herein has also filed a suit being File No.48 – Civil Suit praying for a
\nsuit for declaration and permanent injunction on the ground that the decree is a
\nnullity as it had been passed without jurisdiction on a void clause of contiguity-cum-
\nvicinage and that it had been passed on the grounds of wilful, fraud, deception and
\nmisrepresentation of facts.   During the pendency of the suits if the decree which
\nwas sought to be executed 16 years after the decree of the year 1984 the appellant
\nwho is in possession would be dispossessed from the property pending disposal of
\nthe suits filed by the appellant.\n<\/p>\n
In the facts and circumstances of the case, we direct the execution to remain in
\nabeyance pending disposal of the two suits one filed by Raj Kumar, the vendor of
\nthe appellant herein and the other filed by the appellant herein being File No. 48
\nCivil Suit Titled J.C. Sehgal vs. D.D. Abrol & Ors. and in the meanwhile the
\nappellant would not be dispossessed.  This is especially in view of the fact that the
\nrespondent No.1 is seeking to enforce the rights of pre-emption which Courts have
\nheld in several decisions to be a weak right.\n<\/p>\n
In the result, the appeals are allowed and  the common judgment and final order
\ndated 10.10.2002 passed by the High Court of Jammu & Kashmir in C.R. No. 231 of
\n2001 and C.R. No. 4 of 2002 is set aside.  No costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India J.C. Sehgal vs Devi Dass & Ors on 27 April, 2004 Author: . A Lakshmanan Bench: S. Rajendra Babu, Dr. Ar. Lakshmanan, G.P. Mathur. CASE NO.: Appeal (civil) 2713-14 of 2004 PETITIONER: J.C. Sehgal RESPONDENT: Devi Dass & Ors. DATE OF JUDGMENT: 27\/04\/2004 BENCH: S. Rajendra Babu, Dr. AR. Lakshmanan & […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-272029","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nJ.C. 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