Kaka Jat vs Amar Nath

(1) This Civil revision is directed against the order of Subordinate Judge (Chief Judicial Magistrate ) Jammu, dated 18th November 1974 by which

the application of the petitioner, dated 25th September, 1974 seeking dismissal of the suit of the plaintiff as having abated under the provisions of

Sections 3, 5, 36. 47, 51, 52 and 54 of the Jammu and Kashmir Agrarian Act, 1972 was rejected.

(2) The respondent No. I filed a suit for possession on the basis of preemption under right of Prior Purchase Act (II of 1993 ) The land in dispute

had been sold on 29th April 1971, to the petitioner vendee, by the owner Munshi Ram, respondent No. 2 During the pendency of this suit the

petitioner defendant made the application on 25th September, 1974, referred to para 1, above. The learned Subordinate Judge, Jammu came to

the conclusion that there was no merit in that application, since the matter under the Right of Prior Purchase Act had to be determined by a civil

court and the authorities under the Agrarian Reforms Act have no jurisdiction to deal with those matters.

(3) I have heard Mr. Gupta the learned counsel for the petitioner, and have peruse the record.

(4) It is conceded that the sale deed in question dated 29th April, 1971 is anterior to the appointed date under the Agrarian Reforms Act, which

date is Kharif 1971. Under Section 3 of the Agrarian Reforms Act is provided i

Notwithstanding anything contained in any law for the time being in force, the right of ownership of any person and the right of any intermediary in

and not held by him in his personal cultivation on the first day of September, 1971 shall extinguish and shall vest in the State with effect from the

appointed date:

Provided that nothing in this Section shall effect the right of a mortgagee without possession, if any on the land.

(5) A bare reading of this section would show that two conditions are required for the application of that section. The first condition being that the

person must be out of possession of the land and secondly he must be an owner of the land on 1st September, 1971. In the instant case, the

defendant was indeed the owner by virtue of the sale deed, but he was also in occupation of the land and not out of possession of the land, and as

such, the provisions of section 3, would not be attracted. The learned counsel for the petitioner drew my attention to Section 47. of the Agrarian

Reforms Act. With a view to emph. asize that the Agrarian Reforms Act would apply even to the cases under the Right of Prior Purchase Act. I

am afraid this submission of the learned counsel is without any merit. Section 47 of the Agrarian Reforms Act provides :

The provisions of this Act and the rules made thereunder shall have effect not with standing any thing contained in any other law or any custom or

usage or in contract, express or implied or in any instrument in c insistent with the provisions of this Act.

(6) It would, thus, be seen from this section that the provision of the Agrarian Reforms Act, and the rules made thereunder shall have effect

notwithstanding any thing contained in any other law and the Agrarian Reforms Act. No inconsistency has been pointed out between the two Acts

and in my opinion, Section 47 of the Agrarian Reforms Act cannot advance the case of the petitioner any further.

(7) Mr. Kotwal, the learned counsel for the respondent has drawn my attention to Section 51 of the Agrarian Reforms Act, and has vehemently

argued that in this Section which deals with repeal and savings, the legislature in its supreme wisdom did not include the Right of Prior Purchase

Act as one such legislation which stood repealed by the Agrarian Reforms Act. There appears to be force in this submission. Having gone through

the provisions of the Agrarian Reforms Act, and the Right of Prior Purchase Act. I do not think that the Agrarian Reforms Act can effect the

provisions of Right of Prior Purchase Act in a case where the sale in question is of a date prior to the appointed date under the Agrarian Reforms

Act, and section 3 of the Agrarian Reforms Act does not apply. The divesting of ownership would come about in case where on or after 1st

September 1971 the owner of the land is out of possession of that land. In case the owner was in possession. Before 1st September, 1971, and

continued to be in possession thereafter, the land would not vest in the State. In the instant case the defendant had become the owner prior to 1st

September, 1971, and was also in occupation of the land. His possession and ownership continues even till today. When that is the position, how

can the plaintiffs suit abate. The learned counsel for the petitioner '(defendant) has not been able to answer this question and his only plea that the

Right of Prior Purchase Act stood repealed by the Agrarian Reforms Act, as i have said above, has no merits. Faced with this situation he

contended that the suit would abate as the plaintiff would become the owner after the commencement of the Agrarian Reforms Act, since his suit

had not so far been decided. It is well settled that the Right of preemption is not a right of ownership but only a right of substitution, and after the

preemptor succeeds in the suit under the Right of Prior Purchase Act he shall be entitled to be substituted in place of the vendee and he shall step

into his shoes on depositing the preemption money and then, and only then, would the title pass to him Once the title passes to him it shall date

Back to the date of the suit. It is admitted before me by the learned counsel for the parties that the suit was filed before the commencement of the

Agrarian Reforms Act.

(8) After giving my careful consideration to the submissions made above. I feel that this revision petition is without any merit and deserves to be

dismissed. The order under revision is unexceptionable and no ground has been made out for setting aside the same. I would, accordingly dismiss

this revision petition, but under the circumstances without any order as to costs.

(9) The parties through their counsels are directed to appear before the learned Subordinate Judge (Chief Judicial Magistrate ) Jammu, on 24th

September; 1975 for receiving proper orders.