Ashmi & Anr. vs Assistant Commissioner & Ors.

Muzaffar Hussain Attar, J.—Some litigations, like life, pose complex problems and seek their solutions. Such problems for their resolution

require deep understanding and complete knowledge. Fallibility being inherit in human beings perfect results thus may elude. However, an honest,

hard and dispassionate effort can cull out answer to such problems. The case in hand, facts whereof are given in brief narration, require an in depth

dealing for its resolution.

Subhan Bhat and Ramzan Bhat were cosharers of unpartitioned land. Asad Wani was tenant of Subhan Bhat in respect of some of his land. The

appellants are successorsininterest of Ramzan Bhat and for convenience will be referred to Ramzan Bhat.

Respondents 4 to 6 are successorsininterest of Asad Wani and for convenience will be referred to Asad Wani.

Subhan Bhat executed sale deed in favour of Asad Wani in respect of land measuring 3 kanals and 4 marlas comprising of Survey No.165/19

(39,19/min) (hereinafter referred to as ""Land"") situated at Mangwaji Tehsil Budgam vide sale deed dated 31st of March 1958, which sale deed

was registered on 13th April 1958. Ramzan Bhat instituted Civil Original Suit under the Jammu & Kashmir Right of Prior Purchase Act, 1993

(1936 AD), (for short Act of 1993) pleading therein that he having preferential right of prior purchase in respect of the ""land"", is entitled to a

decree thereof against Asad Wani and Subhan Bhat. The suit was decreed by the trial court in faovur of Ramzan Bhat on 21st Dec. 1960. An

appeal was filed against the said decree and judgment by Asad Wani. Suit was remanded by the first appellate Court on 31st March 1963. The

suit was again decreed by the trial court vide its judgment dated 30th June 1970. The first appeal was dismissed by the first appellate Court on

30th Dec. 1972 and second appeal filed before this court was dismissed by the court vide its judgment dated 29th May 1986. The decree passed

in favour of Ramzan Bhat, thus, attained finality. In the suit filed under the Act of 1993, initially seven issues were framed, but later on, on the

application of Asad wani, one more issue was framed which reads as under:

Whether the defendant No.1 was a tenant of the suit land long before the sale deed was executed. If so, what would be it's effects on the suit?

O.P.D

On this issue, the trial court after scanning and appreciating the evidence recorded a finding that Asad wani enjoyed the rights of tenancy over

one kanal and eleven marlas of ""land"". The said finding of the trial court remained unaltered even when the second appeal was dismissed by this

Court. The decrees of the trial Court and first appellate Court ultimately merged into the decree and judgment of this Court dated 29th May 1986.

During the pendency of the civil second appeal, in view of coming into force J&K Agrarian Reforms Act of 1976 (for short Act of 1976), the

matter was referred by this Court to Collector concerned. The Collector concerned in its report dated 8th April 1984 which is part of the record

of civil second appeal, opined that none of the parties was cultivating the ""land"" in kharief 1971 for the reason that it was put on the superdari by

the civil court he further opined that whosoever will be declared to be the owner of the land will be deemed to be in possession in Kharief 1971,.

and the land will vest in such person under the Act of 1976. After passing of the judgment in civil second appeal, an application was filed by Asad

wani before the Assistant Commissioner (Collector Budgam). From the order passed by Assistant Commissioner (Collector Budgam), copy

whereof, is placed on the record of the appeal, it appears that Asad Wani had made the application praying therein for determination of tenancy

rights under the Act of 1976. The Assistant Commissioner (Collector Budgam) dismissed the said application. An appeal came to be filed against

the order of Assistant Commissioner (Collector Budgam) before the Joint Commissioner Agrarian Reforms Srinagar, which appeal was allowed by

the said authority vide its order dated 19th May 1994. In terms of the order of the appellate authority, Asad Wani was held to got benefit of

Section 4 and 8 of the Act of 1976. Being aggrieved of the said order of the appellate authority revision petition was filed before the J&K Special

Tribunal, which suffered dismissal in terms of order dated 30th Dec. 1996. Writ petition registered as OWP No. 436/97 was filed challenging

appellate and revisional orders which writ petition is dismissed by learned writ court vide it's judgment dated 07th Sept. 2007. It is in this

backdrop that this Letter Patent Appeal has been filed, praying therein for setting aside the impugned judgment and for allowing the writ petition.

We have heard learned counsel for parties at length and considered the matter.

Mr. A. Haqani, learned counsel for the appellants submitted that Asad Wani after having purchased the land from Subhan Bhat became the

owner of the land, and his tenancy rights merged into the ownership rights. The learned counsel further submitted that Ramzan Bhat who

succeeded in his preemption suit, accordingly, stepped into the shoes of Asad wani and was entitled to get ownership rights as well as possession

of the land. The learned counsel further referred to the report of the Collector sent to this Court during the pendency of civil second appeal, and

submitted that the Collector had categorically opined that in between the parties whosoever will be declared to be the owner by the court the

land"" would vest in such person under the Act of 1976. The learned counsel would thus, submit that Ramzan Bhat having been declared to be the

owner of the land in the preemption suit, he will be deemed, to be in possession of the ""land"". The learned counsel in support of his argument

referred to and relied upon case titled Shah Mathurdas MaganLal and co. appellants v. Nagappa Shankarappa Malaga and ors respondents,

reported in AIR 1976 SC 1565, case titled Nalakath Sainuddin appellant v. Koorikadan Sulaiman, respondent, reported in AIR 2002 SC 2562

and case titled Shobrajmal and ors petitioners v. Smt. Kamla Devi, respondent, reported in AIR 1977 Raj. 194.

Mr. G.A. Lone learned counsel for respondents 4 to 6 submitted that Asad Wani was the protected tenant, so his estate was a large estate in

which after sale of the land, the lesser estate viz ownership rights merged. The learned counsel submitted that the tenancy rights of Asad Wani were

not thus affected by the purchase of the ownership rights in the land through registered sale deed, so the appellate authority under the Act of 1976

and the revisional authority have rightly held that rights of the protected tenant would be protected by the Act of 1976 and the orders of mutation

u/s 4 and 8 of the Act have been rightly passed. The learned counsel further submitted that the impugned judgment is legal and valid, does not call

for any interference.

Before we deal with the submissions of the learned counsel it will be apt to refer to the provisions of the relevant Statues.

Section 4 of the Act of 1993 refers to right of prior purchase, application of. The said section is reproduced as under:

Right of prior purchase, application of

The right of prior purchase shall mean the right of a person to acquire agricultural land or village immovable property or urban immovable property

in preference to other persons and it arises in respect of such land only in case of sales, and in respect such property only in case of sales or of

foreclosures of the right to redeem such property. Nothing in this section shall prevent a Court from holding that an alienation purporting to be

other than a sale is in effect a sale.

Sub sections (5), (6) and (8) of Section 2 of the J&K Tenancy Act 1980 are reproduced as under:

(5) ""tenant"" means a person who holds land, under the States, or under another person, and is, or but for a special contract in that behalf would

be, liable to pay rent for that land, to the State or to that person; but it does not include

(a) an inferior landholder, or

(b) a person to whom a holding has been transferred, or an estate or holding has been let on farm, for the recovery of an arrear of land revenue, or

of a sum recoverable as such, or

(c) a mortgagee of the rights of a landholder,

(d) omitted;

(6) ""landlord"" means a person under whom a tenant holds land, and to whom the tenant is, or but for a special contract would be, liable to pay rent

for that land;

(8) ""tenancy"" means a parcel or parcels of land held by a tenant of a land lord under one lease or engagement or one set of conditions, but may

comprise land held by a tenant partly in right of occupancy and partly without such right;

Section 54 of the Transfer of Property Act 1977, (1970 AD) defines sale and is reproduced as under :

""Sale"" defined

Sale"" is a transfer of ownership in exchange for a price paid or promised or partpaid and partpromised. Sale how made Such transfer, in the case

of tangible immoveable property or in the case of a reversion or other intangible thing, can be made only by a registered instrument.

On consideration of Sub Section (5), (6) and (8) of Section 2, it becomes writ large that a ""tenant"" means a person who holds land, under the

State, or under another person, and is, liable to pay the rent for that land. ""Landlord"" means a person under whom the tenant holds the land, and to

whom the tenant is liable to pay the rent for that land.

Sub Section (8) defines tenancy to mean a parcel or parcels of land held by a tenant of landlord under one lease or engagement or one set of

conditions.

A close examination of these provisions of law get manifested into one legal character that from land which is in ownership of the landlord,

tenancy can be created, and the tenant holds such land under another person who in terms of the statute is the landlord. The tenancy right is thus,

created from the rights exercised by the landlord over the land. The rights of the landlord over the land are basic rights from which tenancy rights

are created. In common parlance tenancy owes it's origin to the rights of the landlord over the land and the tenant thus derives interest in the land

from the landlord. It is in fact from bossom of the landlord tenant is born. The ownership rights of the landlord over the land are thus, a large estate

and the rights of the tenant over the land by virtue of owing its existence to the landlord is a lesser estate. The landlord is having reversionary rights

which can be exercised in accordance with the provisions of statute or any contract existing between the landlord and tenant which agreement,

however, would be subject to any statutory limitations. Even on common sense approach, it does not stand to reason that a lesser or smaller thing

can accommodate within it a greater or bigger thing.

We, therefore, do not subscribe to the view projected by Mr. G.A Lone learned counsel, that tenancy is greater estate and ownership is lesser

estate which will merge into tenancy rights.

The Hon'ble Supreme Court in case titled Shah Mathurdas on the basis of Section 111 of the Transfer of Property Act has ruled that if the

lessor purchase the lessees interest the lease is extinguished as the same person cannot at the same time be both landlord and tenant. In the said

case the property which was under the tenancy of the tenant was mortgaged in his favour by the landlord by execution of the mortgage deed. The

mortgage deed provided that mortgagee will be in possession of the property from 7th Nov. 1953 on which date the tenancy would end. The

mortgage deed was executed on 21st of May 1953. The Hon'ble Supreme Court on facts stated two things in the said judgment, one that the

mortgagee's rights cannot merge into the tenancy rights as both are similar estate and it is only a lesser estate which could emerge into the greater

estate; secondly, on facts it was held that the tenancy rights of the mortgagee had extinguished by mortgage deed from 7th Nov. 1953. In the said

judgment it was further held by the Hon'ble Supreme Court that in order to constitute merger of the lesser estate of the lessee's interest must be in

the whole of the property and should invest at the same time in one person and in the same right. The Hon'ble Supreme Court in case of Nalakath

has, held that a person cannot be an owner and sub lessee both at the same time. It was held that smaller estate of sub tenancy will sink or drown

into larger estate of ownership as the two cannot exist. It was held that subtenant had acquired full ownership in the entire property and the right of

reversion which vested in the original owners stood fully and entirely vested in the sub lessee who had purchased the whole property. It was further

held that merger is founded on the principle that two estates, one larger and other smaller cannot coexist, smaller estate in equity and, must in law

sink or merge into the larger estate.

The Hon'ble High Court of Rajasthan in Shobrajmal's case on the basis of Shah Mathurdas's case (supra) held that the tenancy rights of the

appellant therein were extinguished as soon as sale in favour of tenant was complete which gave rise to the right of preemption to the preemptor. It

was held that at the date of accrual of the preemption rights the vendee possessed no tenancy rights on account of extinction of the tenancy rights,

and the subsequent substitution of the name of preemptor in the sale deed cannot revive extinguished tenancy rights of the tenant, who had

purchased property from the owner.

Even the provisions of Tenancy Act of 1980 would show that for being a tenant there has to be the landlord and the two expressions 'landlord'

and 'tenant' connote two different meanings. The moment tenant purchases interest/reversionary rights of the landlord, in land he becomes the

owner of the land, so ceases to be tenant of the landlord. The relationship of landlord and tenant in such circumstances collapses by operation of

the Statute and for contract for sale/agreement.

Mr. Haqani's contention that Asad wani lost the character of tenant, the moment he purchased the land from Subhan Bhat, his landlord, on the

basis of the provisions of statute and law laid down by the Hon'ble Supreme Court is correct. Asad wani, the moment the ownership rights of land

of which he was tenant vested him, ceased to be tenant of the said land as owner of the land could not be the tenant of his own person.

In view of the above discussion in the facts of this case we have reached to conclusion that after purchase of the land through sale deed by

Asad wani tenant from Subhan Bhat, his tenancy rights merged into his ownership rights. We have further arrived at the conclusion that Asad wani

after purchase of the land from his landlord, ceased to be tenant of the land, as one person cannot be simultaneously tenant and landlord of the

same land.

Now the question which arise for our consideration is as to which relief the appellants are entitled to. This question would have not cropped

up, had the Asad wani be not a tenant of the part of land, he purchased from his landlord, but the landlord would have been owner in possession

of the land, the rights and interests whereof, after the sale would completely vest in Asad wani. In such a situation Ramzan Bhat preemptor without

any demur would be entitled to get the possession of the land also which he had preempted.

We, now refer to Section 4 of the Act of 1993, which provides that right of prior purchase shall mean the right of the person to acquire

agricultural land or village immovable property or urban immovable property in preference to other persons and it arises in respect of such land

only in case of sales.

Section 4 would thus confer right of prior purchase to acquire land in preference to other persons. This right of prior purchase has thus two

facets, one that if a person is proposing to sell his immovable property then the person can exercise right of prior purchase in accordance with the

statutory provisions of acquiring said immovable property in preference to the proposed vendee and if the sale is complete a person can exercise

right of prior purchase to acquire the immovable property. From the perusal of the provisions of Act of 1993, what would emerge is that right of

prior purchase is not right of repurchase of property. The person who exercise the right of prior purchase and succeeds in that, only substitutes

himself and steps into the shoes of the original vendee. The rights which the original vendee acquire under sale deed would thus vest in the person

who exercises the right of prior purchase about the same immovable property. The Hon'be Supreme Court in case titled Bishan Singh and ors,

appellants v. Khazan Singh and ors, respondents, reported in AIR 1958 S. C 838 has held that right of preemption is not a right to the thing sold

but a right to the offer of thing about to be sold. This right has been called primary or inherent right. It has been further held that preemptor has

secondary right or remedial right to follow the thing sold. This right was held to be a right of substitution and not of repurchase. Para 7,8,9 and llof

the aforesaid Hon'ble Supreme Court's judgment are reproduced as under:

(7) ""Before attempting to give a satisfactory answer to the question raised, it would be convenient at the outset to notice and define the material

incidents of the right of preemption. A concise but lucid statement of the law is given by Plowden J. in Dhani Nath v. Budhy, 136 Pun Re 1894

(A), at page 511, thus:

A preferential right to acquire land, belonging to another person upon the occasion of a transfer by the latter, does not appear to me to be either a

right to or a right in that land. It is jus ad rem alienum acquirendum and not a jus in re aliena.. A right to the offer of a thing about to be sold is not

identical with a right to the thing itself, and that is the primary right is to follow the offer to the preemptor. The secondary right is to follow the thing

sold, when sold without the proper offer to the preemptor, and to acquire it, if he thinks fit, in spite of the sale, made in disregard of his preferential

right.

The aforesaid passage indicates that a preemptor has two rights: (1) inherent or primary right i.e., a right to the offer of a thing about to be sold and

(2) secondary or remedial right to follow the thing sold.

(8) Mahmood J. in his classic judgment in Gobind Dayal v. Inayatullah, ILR 7 ALL 775 at p. 809 (FB) (B), explained the scope of the secondary

right in the following terms:

It (right of preemption) is simply a right of substitution, entitling the preemptor, by means of a legal incident to which sale itself was subject, to

stand in the shoes of the vendee in respect of all the rights and obligations arising from the sale, under which he derived his title. It is, in effect, as if

in a sale deed the vendee's name were rubbed out and preemptor's name inserted in its place.

(9) The doctrine adumbrated by the learned Judge, namely, the secondary right of preemption is simply a right of substitution in place of the original

vendee, has been accepted and followed by subsequent decisions.

(11) That plaintiff is bound to show not only that his right is as good as that of the vendee but that it is superior to that of the vendee. Decided

cases have recognized that this superior right must subsist at the time the preemptor exercises his right and that right is lost if by that time another

person with equal or superior right has been substituted in place of the original vendee. Courts have not looked upon this right with great favour

presumably, for the reason that it operates as a clog on the right of the owner to alienate his property. The vendor and the vendee are, therefore,

permitted to avoid accrual of the right of preemption by all lawful selling the property to a rival preemptor with preferential or equal right. To

summarize: (1) The right of preemption is not a right to the thing sold but a right to the offer of a thing about to be sold. This right is called the

primary or inherent right. (2) The Preemptor has a secondary right or a remedial right to follow the thing sold. (3) It is a right of substitution but not

or repurchase i.e., the preemptor takes the entire bargain and steps into the shoes of the original vendee. (4) It is a right to acquire the whole of the

property sold and not a share of the property sold. (5) Preference being the essence of the right, the plaintiff must have a superior right to that

place. (6) The right being a very weak right, it can be defeated by all legitimate methods, such at the vendee allowing the claimant of a superior or

equal right being substituted in his place.

Asad Wani was substituted by Ramzan Bhat vizaviz the sale of the land in respect of which the sale deed was executed by Subhan Bhat in

favour of Asad wani. Ramzan Bhat, in law would thus be entitled to get what Asad wani had obtained through sale deed from Subhan Bhat as in

the capacity of preemptor he substituted Asad wani's interest in land.

It has been proved as a fact in the suit filed by Ramzan Bhat that from out of the suit land Asad wani was tenant of one kanal and eleven marlas

of land. This fact is also reflected in the report of the Collector sent to the Hon'ble High Court. Asad wani had thus purchased ownership

rights/reversionary rights in respect of one kanal and 11 marlas of land which were in his tenancy and in respect of the other part of the suit land,

viz one kanals and 13 marlas, Asad wani had purchased the ownership as well as right of possession of the suit land.

Asad Wani's name was reflected in revenue records as owner in possession of entire land in view of sale deed. Ramzan Bhat was shown to be

owner in possession of entire land on the basis of decree passed in his favour. The fact remains that Asad wani was tenant of land only in respect

of land measuring one kanal and eleven marlas.

On the doctrine of substitution Ramzan Bhat on the basis of his right of prior purchase which right got crystallized in his favour at the time of

institution of the suit in the year 1958, thus became owner in possession of the suit land minus one kanal and eleven marlas of which only ownership

rights/reversionary rights vested in him and tenancy rights continued to reside with Asad wani. The appellants would thus, be entitled to be in

possession of the land as owners measuring one kanal and 13 marlas from out of the suit land. The private respondents 4 to 6 under the provisions

of Agrarian Reforms Act would be owners in possession of land measuring one kanal and 11 marlas. Respondents 4 to 6 in terms of the provisions

of J&K Agrarian Reforms Act 1976 are entitled to be declared as owners of land measuring one kanal and 11 marlas.

In view of above discussion with respects we do not subscribe to the view propounded by Hon'ble High Court of Rajasthan in Shobrajmal's

case that the tenant loses his right of tenancy after purchase of reversionary rights from owner.

In view of the above discussion we, accordingly, set aside the judgment under appeal. The writ petition is ordered to be allowed in terms of

this judgment. The orders impugned in the writ petition stand quashed. The parties would be owners in possession of land in terms of declaration

made in this judgment viz appellants to be owners in possession of the land measuring one kanal 13 marlas and respondents 4 to 6 to be in

possession of the land measuring one kanal eleven marlas for which orders under Section 4 & 8 of the Act of 1976 may be passed by appropriate

authority. The appropriate authorities shall, accordingly, update the revenue records and put parties in possession in accordance with mandate of

this judgment.

Disposed of.