Makhan vs Din Moh'd and Others

J.N. Wazir, C.J.—This is civil second appeal filed by Makhan Defendant against the judgment and decree of Additional District Judge,

Poonch. The facts which gave rise to this appeal briefly stated as these:

Din Moh'd, Dil Moh'd, Sakhi Moh'd, Nur Moh'd, and Khan Moh'd sons of Shams Din filed a suit to pre-empt a sale made by Om Prakash and

Prem Prakash occupancy tenants in favour of Makhan landlord of occupancy holding measuring 40 Kanals comprised of Khasra Nos. 102, 103

and 104 situate in village Ponda Tehsil Rajourl for a consideration of Rs. 600/-. The Plaintiffs alleged that they were tenants under the vendors and

therefore had a preferential right to purchase the occupancy holding as compared to that of the Defendant. The Defendant resisted the suit on

various grounds, inter alia, that the Plaintiffs are not the tenants, that he was the owner and had preferential right over the Plaintiffs to purchase the

property, that the Plaintiffs had waived their light to purchase the property. Lastly, it was pleaded that the occupancy rights had merged into his

proprietary rights and suit to pre-empt the sale of occupancy holding was not competent. The trial Court after examining the evidence adduced by

the parties found that the waiver on the part of Plaintiffs has not been established, that the Plaintiffs being tenants under the vendors had preferential

right to purchase the land u/s 14 of the Right of Prior Purchase Act as amended by Act No. 23 of 1959. The Plaintiffs' suit was accordingly

decreed on payment of Rs. 600/- as the price of the land. On appeal the learned Additional District Judge, Poonch, affirmed the findings arrived at

by the trial Court and dismissed the Defendant's appeal. The Defendant has come up in further appeal to this Court.

In this second appeal it is argued on behalf of of the Defendant Appellant that the Courts below, have erred in holding that by virtue of amended

Section 14 of the Right of Prior Purchase Act the Plaintiffs right to purchase the property was superior to that of the landlord, as the amended

section of Prior Purchase Act has made Section 60 of the Tenancy Act inoperative. I have gone through the judgment of the Additional District

Judge. He has relied upon Section 14 of the Right of Prior Purchase Act as amended by Act No. 23 of 1959 and has remarked that this section

was amended with the: specific intention of protecting the right and the interests of the tenants and so the assertion of right by the tenants was in

accordance with law after it had been amended, the tenants had the preferential right of purchase as against Makhan landlord in this case, as has

born proved by the evidence of the patwari. Section 14 of the Right of Prior Purchase Act as amended reads as under:

Notwithstanding anything contained in any law, rule or custom but subject to the provisions of Section 13, the right of prior purchase in respect of

agricultural land and village immovable property shall vest-

(a) where the sale is by a solo owner or occupancy tenant or, in the case of land or properly jointly owned or held, by all the co-sharers jointly-

Firstly- in the tenant cultivating such land where the sale is of agricultural land and in the tenant occupant thereof where the sale is of village

immovable property.

...

It is true that the provisions contained in the Tenancy Act are general provisions whereas the Right of Prior Purchase Act contains special

provisions conferring preferential right over certain persons for purchase of occupancy holding from occupancy tenant. This special provision

overrides the general provision contained in any law, rule or custom pertaining to the sale or alienation or gift of occupancy rights but the Right of

Prior Purchase Act, which is a special Act Section 2(2) reads as under:

Nothing in this Act shall affect the provisions of Order XXI, Rule 88 of the CPC and, Section 60 of the Jammu and Kashmir Tenancy Act No. II

of 1980.

By virtue of Sub-section (2) of Section 2 of the Right of Prior Purchase Act, therefore, all the provisions contained in that Act do not affect the

provisions of Order XXI, Rule 88, CPC and Section 60 of the Jammu and Kashmir Tenancy Act of 1980. Section 60 of the Tenancy Act is not

affected by the special provisions of the Right of Prior Purchase Act as it is saved by Section 2(2) of that Act. The learned lower Court relying on

The J.K. Cotton Spinning and Weaving Mills Co. Ltd. Vs. The State of Uttar Pradesh and Others, , in which it has been laid down that special

provision prevails over general provision, has come to the, conclusion that the amended Section 14 of the Right of Prior Purchase Act has

overridden Section 60 of the Tenancy Act and also special Section 2(2) of the Right of Prior Purchase Act has become ineffective. He has not

given any reasons for holding that Sub-section (2) of Section 2 of the Right of Prior Purchase Act has become ineffective. In the same ruling of the

Supreme Court referred to above it has been held:

In the interpretation of statutes the courts always presume that the legislature inserted every part thereof for a purpose and the legislative intention is

that every, part of statute should have effect. These presumptions will have to be made in the case of rule making authority also.

It is fully clear from the above observations of their Lordships that the legislature inserted every part of the statute for a purpose and that every part

of the statute should have effect. Sub-section (2) of Section 2 of the Right of Prior Purchase Act lays down that nothing in the Act shall affect the

provisions of Section 60 of the Jammu Kashmir Tenancy Act. No. II of 1980. By virtue of Sub-section (2) of Section 2, the Right of Prior

Purchase Act will not have any effect on Section 60 of the Jammu and Kashmir Tenancy Act. In other words, Section 60 of the Jammu and

Kashmir Tenancy Act is saved from the effect of amended Section 14 of the Right of Prior Purchase Act.

Section 60 of the Tenancy Act provides as under.

Right of occupancy may be transferred by sale, mortgage or gift, subject to the provisions of Alienation of Land Act and to the following

provisions, namely:

(1) If an occupancy tenant intends to transfer his right of occupancy, in whole or in part, by sale, mortgage or gift, he shall apply to a Revenue

Officer for permission to proceed with such transfer:

Provided that, in the case of occupancy tenant holding directly under the State, such permission, shall not be necessary.

(2) On receipt of such application, the Revenue Officer shall summon the landlord of the tenant, and shall enquire whether he desires to purchase

the right of occupancy which the tenant intends to transfer.

(3) If the landlord, without good and sufficient reason, fails to attend in obedience to the summons, due service of such summons having been

proved to the satisfaction of the Revenue Officer, or if the landlord on attendance declines to purchase the right of occupancy, which the tenant

intends to transfer, the Revenue Officer shall, by written order, authorise the tenant to proceed with the transfer.

(4) If the landlord, on,, appearance before the Revenue Officer states that he wishes to purchase the right of occupancy the Revenue Officer shall

fix the value of the said right.

(5) The landlord shall be deemed to have purchased the said right, if he pays to the tenant through the Revenue Officer, the value fixed under Sub-

section (4) within such time as the Revenue Officer by his order under Sub-section (4) appoints in this behalf.

(6) On the value being so paid the right of occupancy shall be extinguished, and the Revenue Officer shall, on application being made to him, put

the landlord in possession of the tenancy, or part thereof transferred.

(7) If the landlord fails to pay the value fixed within the time appointed, the Revenue Officer shall authorise the tenant to proceed with the transfer.

This provision is made in the Tenancy Act to protect the rights of the landlord. He is given a preferential right to purchase occupany rights from his

occupancy tenant. In case the tenant sells the occupancy holding without the knowledge of the landlord and without going through the procedure

laid down in Section 60 of the Tenancy Act, the landlord can avoid that sale u/s 66 of the Tenancy Act which reads as under:

Transfers of occupancy right not made in accordance with the provisions of this Act shall be veidable On suit instituted within six years of the date

of the transfer at the instance of the landlord...

As stated above Section 60 of the Tenancy Act is saved from the effect of the amended Section 14 of the Right of Prior Purchase Act and the

landlord has preferential right to purchase occupancy right from his occupancy tenant. The counsel for the Respondent has argued that in the instant

case the procedure laid down in Section 60 of the Tenancy Act has not been followed and therefore the Defendant is not entitled to claim any

benefit conferred on him u/s 60 of the Tenancy Act, This contention is without any force. Section 60 of the Tenancy Act, as pointed out above, is

for the benefit and protection of the landlord and also of the tenant who is at liberty to sell occupancy holding to any one other than the landlord

after he complies with the terms contained in that section but if the tenant is willing to alienate his occupancy right to his landlord and the latter

privately purchases occupancy rights from the occupancy tenant he in fact does no more than exercise the right conferred upon him fry law and the

sale made by occupancy tenant of his occupancy fights in favour of the landlord is not pre-emptible. In this view I am supported by a Division

Bench ruling of this Court reported as 43 Pun LR J and K 93, Santu v. Sukhu, in which it has been held:

The second portion of Section 2, Sub-clause (2) of the Right of Prior Purchase Act simply means that if the landlord elects to purchase the

occupancy rights under the provisions of Section 60 then there is no further right of prior purchase, and no suit to enforce that right can be

instituted.

If the landlord has declined to purchase the occupancy right then a suit for prior purchase is competent.

Section 60(6) of the Tenancy Act provides that on the value being so paid the right of occupancy shall be ex- disguisable. As the occupancy

rights of the tenant when sold to the landlord are merged in his proprietary rights, the occupancy rights are completely extinguished on the principle

of merger. The Additional District Judge has not followed the Division Bench ruling of this Court on the ground that the case was decided prior to

the amendment of Section 14 of the Right of Prior Purchase Act. He has fallen into an. error as he has not carefully noticed the effect of provisions

of Section 2(2) of the Right of Prior Purchase Act which has saved Section 60 of the Tenancy Act from the operation of the amended Section 14

of the Right of Prior Purchase Act. In 116 Pun Re. 1916 : AIR 1917 Lah 284, Akbar Hussain v. Ali Ahmad, the landlord had purchased the

tenancy and vendors collaterals sought to utilize the provisions of the Punjab Pre-emption Act 1913, to turn him out. It was held that the landlord's

position as a vendee was unassailable by any one claiming to pre-empt under the Punjab Pre-emption Act, because he (landlord) had power under

Anr. Statute (The Punjab Tenancy Act), to prevent any sale whatsoever of the tenancy, and because by purchasing himself, when the tenant

wished to sell, he had in effect done no more than exercise that power. It was pointed out, for example that to interpret the law otherwise would

lead to absurdities, for example, if a statutory pre-emptor were allowed to pre-empt, the defeated landlord might annul the sale by having to a

revenue Court. In the instant case if the Plaintiffs are allowed to pre-empt the sale made by occupancy tenant in favour of the landlord that sale

could be avoided by the landlord by going to a revenue Court u/s 66 of the Tenancy Act on the ground that the provisions of Section 60 were not

followed by the tenants. In my view the amendment of Section 14 of the Right of Prior Purchase Act has not affected the preferential right of the

landlord to purchase the occupancy rights from his tenants and the Plaintiffs who were tenants under the vendors were not competent to pre-empt

the sale.

The counsel for the Appellant has further argued that the Plaintiffs had waived their right to purchase, the occupancy rights and the Courts below

have erred in holding that no wavier was proved. The Defendant has produced oral evidence to show that the Plaintiffs were asked to purchase the

occupancy holding but they refused, to do so. On the other hand, there is evidence adduced by the Plaintiffs that no such offer was made and they

were kept completely ignorant in regard to the sale of the occupancy holding. Both the Courts below on the evidence have held that waiver has not

been established. This is a finding of fact and cannot be disturbed in second appeal.

The Plaintiffs have not been able to establish their preferential right to pre-empt the sale of the occupancy holding. The decree passed in their

favour cannot be sustained. I, therefore, allow this appeal, set aside the decree passed by the Court below in favour of the Plaintiffs and dismiss

their suit. The parties are left to bear their own costs throughout.