Ashoor Sofi vs Ghani Sofi and Ors.

(1) This is vendeedefendants appeal against a concurrent judgment of the courts below decreeing the plaintiff's suit for preemption. Both the courts

have found that the plaintiff was holding the land sold as a tenant, and, concluded, that he had a preferential right to purchase the land as against the

vendeedefendant who was merely an owner in the Mahal. In this the two courts have relied on section. 14 of the Right of Prior Purchase Act as

amended by Act. No. XXIII of 1959. By virtue of Act No. XXIII of 1959, section 14 of the Principal Act was substituted by a new section. The

old section 14 did not give any preferential claim to a tenant against an owner in the Mahal. The new section 14 has however brought about a vital

change, it has put the tenant at the top and ranked his right superior to that of the owner in the Mahal. The amending Act came into force during the

pendency of the suit which was instituted as far back as December, 1957. The trial court assumed that section 14 as altered was applicable to the

pending suits. The first appellate court tried to be more wise. It reasoned out the applicability of the new section to the pending suits on the basis of

section 2(3) of the Right of prior purchase Act, as originally enacted. In the result both the courts decreed the suit. Hence this appeal.

(2) Section (2) of the Right of Prior purchase enacted reads.

2 (I) The preemption Regulation of 1977 is hereby repealed and the words"" right of prior purchase"" shall be substituted for the word ""preemption

wherever it occurs in any of the enactnents at present, in force within the State.

(2) Nothing in this Act shall affect the provisions of Order XXI, Rule 88 of the Code of civil procedure and Section 60 of the Jammu and Kashmir

Tenancy Act, 1980.

(3) All suits, appeals and proceeding pending at the commencement of this Act shall, so far as may be, be governed by the procedure Laid down

in this Act.

Clearly sub section 3 applied to suits, appeals and proceedings on the date of the commencement of the Right of Prior Purchase Act, as originally

enacted. It has no application to the amendments brought about in the Act as originally enacted unless the amending Acts so provide expressly or

by necessary implication. The view to the contrary taken by the first appellate court is therefore manifestly erroneous. That does not however

clinch the controversy in the present case. The question still remains whether there is anything in Act. No. XXIII of 1959 to suggest that new

section 14 acts retrospectively in the sense that it applies to pending cases.

(3) The question came to be considered by a Full Bench of this court in Syed SirajulDin and another Vs. Karim Dar and others (AIR 1969 J & K,

62) and it was held by a Majority judgment that new section 14 did not act retrospectively. The question arose vizaviz a tenant and an agnate and

cosharer. Dealing with this question the court observed :

A close scrutiny of the provisions of the Amending Act would show that there is nothing in the said Act which ordains that the amendment should

be given a retrospective effect. A reference of section 14 of the prior purchase Act 1993, as it stood before the Amendment Act No. XXIII of

1959 would show that the right of prior purchase in respect of agricultural land and village immovable property where the sale was by the sole

owner or occupancy tenant or in case of land or property jointly owned or held by all cosharers jointly vested in the persons in order of succession

who but for such sale would be entitled on the death of vendor or vendees to inherit the land or property sold. The Amending Act does not contain

any words to show that right which had been vested in the preemptor has been divested with retrospective effect. It will further be noriced that the

Amendment Act No. XXIII of 1959 does not contain any provisions/corresponding to section 31 introduced by the Punjab preemption

(Amendment) Act, 1950 (No. 10 of 1960) in the parent Act of preemption (No. 1 of 1913). If the legislature had intended to take away the right

that had already been created in favour of a cosharer or an antae as stated above, it would have also enacted a provision similar to section 31

introduced by the Punjab Amendment Act 1960 which gave retrospective effect to Section 15 as newly inserted in Punjab. The obvious inference

is that the rights of the parties as they existed on the date of sale have been left unaffected. This view receives support from the observations of

their Lordships in (1963) 3 SCR 884.

Accordingly the trial court was clearly in error in assuming that the new Section 14 was retrospective and applicable to the pending cases. In this

background the judgment of the courts below are clearly not sustainable and must be set aside.

(4) I therefore accept this appeal : set aside the judgments of the courts below ; and, dismiss the suit but, in the circumstances of the case without

any order as to costs.

(5) At this stage learned counsel for the respondents sought leave to file a special appeal under the letters Patent. As the question involved in the

case is clearly concluded by the full bench Judgment of this court, there is no good ground for granting the leave. The request for leave to file

special appeal is therefore rejected.