Master Sewanath vs Faqir Chand and Others

J.N. Bhat, J.—This is a first appeal directed against the decree of the Addi. District Judge, Jammu, dated 1st July 1903 whereby he has

decreed the suit of the Respondents against the Appellant on the ground of the right of prior purchase with respect to a house situate in Mohalla

Lakodata Jammu on payment of its. 15,000/- within one month of the date of the decree. The vendee-Defendant has come up in appeal against

this decree.

The suit of the Plaintiffs was that the appellant had purchased the house in dispute by means of three sale deeds dated 22-0-00 from Defendant

No. 2 Madan Lal for a consideration of Rs. 15000/-. The Plaintiffs-Respondents had the right of prior purchase with respect to this property on

two grounds: nrst that the property sold was contiguous to their property and secondly that the drain water of the Defendant's house-hold passed

through the compound of the Plaintiff's house. Defendant No. 2 remained ex parte. The first Defendant, Sewa . Nath, vendee, contested the suit on

various grounds. He claimed an equal right with the Plaintiffs and denied the right of the Plaintiffs on the basis of contiguity as well as casement

Alternatively he prayed that he was a tenant of this property before the sale deeds were executed, and in case of the suit being decreed on the

ground of the right of prior purchase of the Plaintiffs, his possession should continue as that of a tenant which he held before the sale deeds. He

further pleaded that he had effected improvements in the house and in case he was to part with possession, he should be given the cost of the

improvements effected by Dim. He further pleaded waiver on the part of the Plaintiffs. in case of a decree be made a claim to the cost of stamps

and the registration charges incurred by him in connection with the sales. His further plea was that in any event the Plaintiff's were not entitled to

any costs even in the case of their success.

These pleadings of the parties gave rise to seven Issues. The eighth issue was with respect to the relief that the Plaintiffs were entitled to.

The Plaintiffs examined Guranditta Mal, Dev Rajsua Kam and Faqir chand, one on the Plaintiffs, as witnesses. The Defendant 1 examined

Dewan Chanel, sudarshan Kumar, Kaica Ham, Chaman lalaswitnesses and he himself went into the witness box.

The first issue related to the superior right of the ""Plaintiffs. This issue reads as under:

Have the Plaintiffs' right of prior purchase with regard to the house sold on the Oasis of contiguity of their house and also on the basis that the

water of the sold nouse passes through the compound of their house as against Defendant No. 1 vendee opp.

So far as this issue is concerned, the trial court held that in fact the house sold was contiguous to the house of the Plaintiffs, but on the basis of

some authorities which will be referred to hereinafter, it held that this could not constitute any ground for prior purchase. About the second part of

the issue the trial Court held thatt Horn the evidence it was proved that the Plaintiff's house was the servient property and the house sold was the

dominant property within the meaning of Section 15 of the Right of prior Purchase Act. The court held that this clause had not been declared ultra

vires of the Indian Constitution either by the Supreme court or by this Court, on the basis of this finding the trial Court decreed the suit of the

Plaintiffs on payment or Hs. i5,oou/- as indicated above.

About the other issues, different findings were recorded by the trial Court, but in view of the order we propose to make in this appeal, the

findings on these issues are not material, nor were these findings canvassed before us by either side.

one important fact has to be mentioned before we proceed to discuss the merits or this appeal. When the case was proceeding in the trial Court,

the Defendant sewanath put in application on 21.5.63 supported by an affidavit before the trial Court for permission to close the drain and end the

easement alleged by the Plaintiff's. This application was rejected by the trial Court on 29-6-63. On 1-7-63 Sewanath again put in an application

supported by an affidavit before the trial Court that he had closed the drain completely on 30th June (53 and therefore the Plaintiffs had no right of

easement or prior purchase. The Defendant No. 1 further stated therein that he would never reopen this drain and would discharge the water of his

house through Anr. channel. About this application the trial court has in the end of its judgment stated that it was made simply to defeat the right of

the Plaintiffs which could not no permitted and therefore it did not take any notice or the averments made in the application and the affidavit.

This case was originally placed before a Division Bench, but In view of a substantial point of law involved in the case was referred to the full

Bench.

The only point canvassed before the Court by the learned Counsel for the parties was with respect to the right of prior purchase claimed by the

plaintiff. The trial Court, has, as a matter of fact, found that the Plaintiffs had claimed a right of prior purchase with respect to the property sold on

two grounds: (L) that the house sold was contiguous to the house of the Plaintiffs, and (2) that the plaintiffs had a right of easement over the

property. On the first ground, on the basis of an authority of the Supreme Court, Bhau Ram v. Baij Nath, AlR 1962 SC1478 and Anr. Division

Bench authority of ""this Court reported Tarachand v. Durgadas, AlR 1963 J&K 27 it held that contiguity was not a reasonable restriction and

therefore on that ground the Plaintiffs could not claim a right of prior purchase. With respect to the second ground of easement it held the Plaintiffs

entitled to decree as prayed for by them.

The learned Counsel appearing for the Appellant contended that the right of easement had been released by the Defendant by means of the

Defendant's application and affidavit of 1st July 1963. The Plaintiffs had lost this right before the decree and therefore their suit should have been

dismissed. The finding on contiguity being in their favour, they simply supported it. The learned Counsel for the Respondents contended that the

right or contiguity was a reasonable restriction within the laws of the State and therefore should form a ground for a decree for the right of prior

purchase. The Supreme Court authority could not apply to the State and the Division Bench authority of this Court, AIR 1963 J&K 27(Supra)

had been wrongly decided. He was supported by a full Bench authority of this Court reported as Goladhu v. Nanak Chand, (S) AlR 1955 J&K

we shall discuss the argument of both the learned Counsel. First let us examine the ground of attack on easement taken by the learned Counsel

for the Appellant as rebutted by the learned Counsel for the Respondents.

According to the learned Counsel for the Appellant the right of easement is a right which depends upon the act of a party. Any one entitled to an

easement can put an end to the easement by Ws own conduct or in the words of Section 38 of the Act a person enjoying a right of easement can

get it extinguished. Section 38 of the casements Act reads as under:

An easement is extinguished when the dominant owner releases it, expressly or impliedly, to the servient owner.

Explanation 1 An easement is impliedly released:

(a) where the dominant owner expressly authorises an act of a permanent nature to be done on the servient heritage, the necessary consequence of

which is to prevent his future enjoyment of the easement, and such act is done in pursuance of such authority.

(b) where any permanent alteration is made in the dominant heritage of such a nature as to show that the dominant owner intended to cease to

enjoy the easement in future.

Explanation 11 however, lays down that ""mere non-user of an easement is not an implied release within the meaning of this section.

The argument of the Appellant's learned Counsel Is that first the Appellant sought the per- mission of the court to extinguish the easement by

closing the dram from which water went from one tenement to the other. This application, it is conceded by the learned Counsel for the parties,

was useless; no permission was necessary m such a case to be given by the Court. His contention la that by an application and an affidavit of the

1st July 63 the Defendant permanently closed the drain which led water to the house of the plaintiff's and therefore the easement was extinguished

within the meaning of Section 38 of the Easement Act and the plaintiff’s had lost the right of prior purchase with respect to tins property. A

twofold objection was raised to this argument of the learned Counsel for the Appellant by the learned Counsel for the Respondents. This first

contention was that at that are stage, when in the words of the in a judge the judgment was being written, the Defendant could not take recourse to

a device to defeat tin-rights of the preemptors Plaintiffs; their rights should have been determined on the slate of affairs existing on the date of the

sate, or-to put the same tiling in legal language, the veneered not improve his title after the sale, much less after the institution of the suit.

In this behalf he relied on an authority of the Board of Judicial Advisers reported as Dharam Singh v. Sita Ram 3 J&K 210. In that authority the

Bard has held.

that the acquisition of an equal right made toy the vendee at any time after the sale which Is sought to be pre-empted, whether before or alter the

suit, cannot be set up by him to defeat the right of prior purchase accruing on the date of the sale. Priority is to be determined with reference to the

date of the sale and not with reference to the date of the institution or the decision of a suit for pre-emption subsequently brought by one of the

claimants.

Having his argument on this authority, the learned Counsel for the Respondents stated that the Defendant sewanath could not improve his title by

putting an end to the easement which was a ground of the right of prior purchase by the Plaintiff during the pendency of the suit. This authority

'receives support from an earlier ruling of the Punjab High Court reported as unianna Singh, v. Uurbalcbsn Singh, 1)1 run Koluoy and Anr.

authority reported as Lachman fciingh v. Matha Singh, ILR Lah ma: (AlK loao Lah. 2/3) (raj. in 91 Fun ice 1009 (Supra) the court consisted of six

Judges, but Kattigan, J. gave a dissenting Judgment and held that the vendee could improve ma title even up to the date of the decree. As against

this authority, there are a number of authorities of different Courts which have held a contrary view. In Hans Nath v. Kagho Prasad, AIR 1932 PC

5? at was held that.

when a sale has taken place to a- stranger the vendee's acquisition by gift of a share in the village, spending a cosharer's suit for pre-emption

instituted before the passing of the Agra Pre-emption Act, 1922, defeats that cosharer's claim for preemption. ""The decisive date as regards the

rights of the so- sharer to pre-empt is the date of the decree.

The earlier Lahore authorities were con"" sidcred by a subsequent full Bench of the Lahore for Court in Madho Singh v. James R.R. skinner,

AIR 1941 Lah 433 in that case the Full Bench of the Lahore High Court came to the conclusion that a vendee can defeat the right of the pre-

emptor by improving his status at any time before the passing of the decree in the pre-emption suit by the trial Court, as the rights of parties are

adjudicated upon by the trial Court alone and the function of the Court of appeal Is only to see what was the decree which the Court of first

Instance should have passed. The improvement by the vendee in his status cans perfected even after the expiry of one year from the date of the

original transaction of sale."" The same view has been taken in Hazarllai v. Kundanial, AlR 1004 MP 5, Nam Copal, v. Fiari Lal, ILK 21 All 441

and san-Karlai v. Foonamchand, AlK 1951 Raj 231. In the Kajusthun case, AlR 1954 Raj 231 (Supra) their Lordships have hold that a pre-

emptor must prove his superior title on three dates, (1) on the date of lie sale, (ii) on the date of the institution of the suit and (ill) on the date of the

decree, ft has further been held In this authority that unless a right subsists on these three dates, no decree for a right of pre-emption can be

passed.

This Court has also in two authorities, Nabir Ganal v. Mohd. Ismail, AIR 1960 J&K 112 and Satar Mond vs. Saraf-ud-Din, AIR 1962 J &

K. 79 held the same view. There is thus a preponderance of authority In favour of the proposition that a vendee can improve his title up to the date

of the decree. Even the Lahore High Court considered its earlier decisions and its last decision on the subject Is contained In AlR 1941 Lah 433

(Supra).

In Punjab an amendment had to be introduced by Act 1 of 1944 whereby the rights of parties in a pre-emption suit would be determined by

the state of all fairs obtaining on the date of the sale.

The learned Counsel for the Respondents, however, stated that whatever be the view of the other courts, this Court could not take such a view

in the presence of the authority of the it Board of Judicial Advisers in 3 J&K LK 210 (Supra) which had taken a contrary view. According to the

learned Counsel this authority was binding on the courts in the State and this High Court was not competent to ignore it in this behalf he referred to

a number of authorities of the various Courts m India which may be cited as under:

state of Bombay v. Chhaganial Gangaram, AIR 1955 Born l (FB); Ameer-un-Nissa Begum and Others Vs. Mahboob Begum and Others, ;

Director of Endowments Govt, of Hyderabad v. Assam All (S) AIR 1938 SC 60; Sarwarlal and Others Vs. The State of Hyderabad, .

In AIR 1905 Bom 1 (F'B), (Supra) it was held that the Privy Council decisions are binding on all High courts In India unless the Supreme

Court holds otherwise.

In Ameer-un-Nissa Begum and Others Vs. Mahboob Begum and Others, it was held that prior-to the Integration of the Hyderabad State

within the Indian Union and coming into force of the Indian Constitution the Nizam of Hyderabad enjoy uncontrolled sovereign powers, lie was in

supreme legislature, the supreme judiciary and the supreme head of the executive, and there were no constitutional limitations upon his authority for

act any of these capacities. The firmans were expressions of the sovereign will of the Nizam and they were binding in the same way as any 'other

law; they would over-ride all other laws which were in contact with. them.

To the same effect are the observations In (B) A1R1956 SC 00. In A1R1900 BC 862 it has been laid down that the power of resumption of

Jagirs was delegated by the Nizam to the Military Governor and therefore the Military Governor's action could not be challenged.

On the analogy of these authorities, the Respondent's learned Counsel contended that the . Board of Judicial Adviser's opinion was accepted

by ills Highness and ills Highness had ail the powers enumerated in AlR 1955 SC 352 (Supra) as enjoyed by the Nizam.

The learned Counsel for the Appellant has argued that under the Constitution of Jammu and Kashmir this High Court has far wider powers

than Were enjoyed by It before the Constitution came into force. This controversy is more or less academic because the majority view on this

subject finds 6upport from a Supreme Court authority reported as Bishan Singh and Others Vs. Khazan Singh and Another, . On this point there is

and there can be no controversy that the Supreme Court authority can overrule the authorities of the privy Council as when as or the Board of

Judicial Advisers of this state, m that case their lordships quoting Piowden J. in Dhani Nath v. Budhu, 136 Fun lie 1894 and Mah-mood, J. in his

famous judgment m Gobind Dayai v. Inayatullah, ILR7 All 75 have drawn the following conclusions:

The Plaintiff Is bound not only to show that lug 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 pre-emptor exercises his right and that that right is lost if by that time Anr.

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 pre-emption by all lawful means. The vendee may defeat the rights by selling the property to a rival pre-

emptor with preferential or equal right. To summarize: (1) the right of pre-emption Is not a right to the thing sold but a right to the boiler of a thing

about to be sold. This right is called the primary or inherent right. (2) The pre-emptor hat) a secondary right or a remedial right to follow the thing

sold. (3) it is a right of substitution but not of re-purchase, i.e., the pre-emptor 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 section. (5) Preference being the essence 08 the

right, the plaintiff must have a superior right to that of the vendee or the person substitutes in his place. (0) The right being a very wean, right, it can

be defeated by legitimate methods, such as the vendee allowing the claimant of a superior or equal right being substituted in his place.

In this case their Lordships of the supreme Court have further held:

The light of promotion could be effectively exercised or enforced only when the pre-emptor has been substituted by the vendee in the original

bargain of sale. A conditional decree where under a pre-emptor gets possession only if he pays a specified amount within a prescribed time and

was also provided for the dismissal of the suit in case the condition was not compiled with, could not obviously bring about the substitution of

decree-holder in place of the vendee before the condition was complied with. Such a substitution took place only when the decree-holder

compiled -with the condition and took possession of the land.

This exposition of the law by their Lord ships clearly lays down that the vendee can by and legitimate means defeat the right of the pre-emptor.

Further, the right of the pre-emptor accrues only when he is substituted for the vendee in pursuance of a decree, deposits money and takes

possession of the property. Till that time he has no right to the property. These two categorical findings clearly justify the inference that the vendee

can improve his title to defeat the right of the pre-emptor to get the property.

Some Courts have gone even further and held that If the Plaintiff's suit is dismissed by the trial Court and he gets a decree in any of the

appellate courts the vendee can improve his right up to that date even. (See AIR 1954 Raj 231 Supra)

The next point in this connection mat has been argued is whether Sevanath could extinguish the easement as he has done. The Respondent's

learned Counsel states that casement could' be extinguished by a registered instrument only. Reference has already been made to Section 38 of the

easements Act which has been quoted in exten so. There can be what in law is called either an express release, an equitable release or an implied

release. An express release may be made cither verbally or by a written instrument. Words which convey the intention of a dominant owner that he

no longer wants to continue the right are sufficient to constitute express release. An equitable release or release by conduct has to be implied from

a permanent alteration in the servient's preventing enjoyment of the right, although such alteration is not expressly authorized by the dominant

owner. When the dominant owner by his acts or omission causes a reasonable belief in the mind of the servient that he does not intend to exercise

it, the-release may be implied from a permanent alteration in the dominant tenement also.

in this case there has been a clear declaration of the intention of the dominant owner to-close the drain and also carve out an alternative outlet

for the water to be drained out into the public sewer. So far as the fact of his having closed the drain -which led water from his house to that of the

Plaintiffs is concerned, it has not been denied before us. The only point stressed before us was whether such a release could be effected without

registered instrument. For this purpose reliance has been placed by the learned Counsel for the Respondents on the following authorities:

S. KR. M. Subramanyam Chettiar Vs. Meyyammai Achi and Others, ; Anthamma v. Ramanamma, (S) AIR 1956 AP 199 and Kristodhono v.

Nandarani, ILR 35 Cal 8S9.

AIR 1043 Mad 522 (Supra) lays down that a document creating a right of easement requires registration.

In Addanki Ramanamma Vs. Ramavarapu Anthamma, It was held that an easement is- a right in essence or -interest in immovable property.

ILR 35 Cal 889 lays down that an easement can either be released expressly or impliedly and if expressly released would amount to alienation.

If these authorities are carefully scrutinized, they do not at all lay down that any document of release is necessary to be registered. All that these

authorities lay down is that if any document by which an easement is created is executed it must be registered. But an easement can be released by

doing some act connoting the intention of the dominant owner to extinguish the easement. it has seen laid down in all books on easement that a

document of release need not be in writing nor need it be registered. (Vide if. D. Katiar's Law of placements and . Licenses in India, it needs).

There is however, a catena of authorities which lays down that no writing, much less a registered instrument, is necessary for the creation or

extinguishment of an easement. These authorities may be cited as under:

Satyanarayanamurthi v. Lakshmayya, A1H 1929 Mad 79; Pundit Rai Lall v. Haiiz Khoda Buksh, 97 Pun Re 1869; Bhagwan Sahai v. Narasingh

Sahai, ILR 31 AIR 612; Gum Sone v. Cassim Dalla, 34 Ind Cas 95 (Low . Bur); Purvatamma v. Lanka Sanyasi, ILR 34 Mail 487 and Suraj

Prasad v. Maheshwari Prasad, 90 Ind Cas 276 (Ail).

There is no necessity to multiply authorities; only one authority may be quoted extension In 97 P&H Re 1869 (Supra) the plaudit’s

premises abutted on the Defendant's and both originally formed part of a single tenement. 25years lie lore suit, Defendant sold to Plaintiff's father

the portion which Plaintiff occupied at the time of suit, and secured by deed to plaintiffs father the use of an ancient drain which existed under both

houses. For six years before action was brought, plaintiff ceased to use the drain, and it was alleged Dy Defendant that Plaintiff could carry of his

drainage without using the drain in question, in a suit by plaintiff to compel Defendant to Keep open the dram, It was held that if Plaintiff, had for

any space of time discontinued the use of the dram, and caused , Defendant to incur expense in altering or tilling it Up in the belief that the drain

had been permanently ""abandoned, or if he had manifested an intention of ""permanently abandoning the use of the drain the servitude might be

considered extinguished.

In the instant case the Defendant sewanath has raised a pucca obstruction to the flow of water by the previous drain andthas arranged its

discharge by an alternative drain dug out by him and has sworn an affidavit that he would never use the previous drain again.

A lukewarm attempt was made by the learned Counsel for the Appellant to argue that the night of easement was"" not a reasonable restriction

within the meaning of Article 19(7) of the Indian Con- solution. The learned Counsel argued that if contiguity is to be rejected as a ground of pre-

emption, a right of easement stands on the same footing and therefore should be held not to be a reasonable restriction on the powers of alienation

of an owner of immovable property.. This point may be considered as settled by the same authority which has decided the point of contiguity,

namely, All 1902 tit; 1-17(1 (Kupra). in that case a. 16of the Punjab Pre-emption Act (Section 15 of the State Act) was the subject of discussion.

This section contains six classes of persons in whom the right of pre-emption vests in respect of urban immovable property. Their Lordships have

quoted the entire section and has stated that the right of pre-emption in that case was sought to be exercised on 1, 3, 4 and Vth grounds in the

section. The first relates to cosharers, 3rd to persons having a common staircase In the property, 4th to the case of a common entrance from the

street and the Uth to the question of contiguity. The question of easement is covered by the othcategory of this section. Their Lordships have at

length given reasons, holding that the lost, 3rd and 4th grounds are reasonable restrictions, and the sixth i.e., contiguity not so. For our purpose it

would be sufficient to refer to the discussion on ground No. 4. Their Lordships stated:

Turning now to the fourth ground, ""where the sale is of property having a common entrance from the street with other properties, in the owners of

such properties"" this ground is in our opinion similar to the third ground, the only difference being that in one case there is a common staircase while

in the other case there is a common private passage from the street. The idea behind the ground seems to be that the buildings are in a common

compound and perhaps more originally put by members of one family or one group with a common private passage from the public streets, in such

a case the owners of the buildings would stand more or less in the position of cosharers, though actually there may be no cosharers ship m the

house sold. But as we have raid this case would approximate to cases of a common staircase and cosharers, therefore, for reasons given m the

case of co sharers, we uphold the right of pre-emption covered by the fourth ground in Section 10.

The lift ground of easement is in our opinion analogous to the fourth ground and therefore must be deemed to have been upheld by their

Lordships of the Supreme Court. Further their Lordships have mentioned all the six grounds. If they were of the opinion that the right of easement

should not be upheld, as a ground of preemption, their Lordships would have necessarily made that comment, in the case of contiguity their Lord-

ships have in unscathing terms condemned this right, contiguity came no. 6 in the list and their omission to condemn No. 5 before No. 6 is very

significant in our opinion, therefore, easement is a valid ground for the exercise of the right of prior purchase but the vendee could extinguish the

easement and has done so, by putting up a permanent blockade in the drain which he could do at any time before the decree. On the ground of

easement, therefore, we think the Plaintiffs are not entitled to any decree.

The next ground is that of contiguity. The learned Counsel for the Respondents has again stated that contiguity should be held as a reason able

restriction within the meaning of Article (19)(7) of the Indian Constitution as applied to the State of Jammu and Kashmir which says.

the words 'reasonable restrictions' occurring in Clauses (2), (a), (4) and (5) shall be construed as meaning such restrictions as the appropriate

legislature deems reasonable.

According to the learned Counsel for the Respondents this has been so held In the full bench authority of this Court reported as (S) A lit 1955

J&K 25 (Supra).. Subsequent decisions of this Court reported as AIR 1963 J&K 27 (Supra) and Mt. Gulab Bibi v. Suit, Sakuntala Devi, 1961

LLJ 7 J&K has held that vicinage is not a ground on which a right of prior purchase can ho said to exist. It was in view of that conflict or view that

the matter was referred to Full Bench. The Supreme Court in AIR 1962 KU 1470 (Supra) has laid down the following dictum on the point of

contiguity:

The constitution now prohibits discrimination against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them under

Article 15 and guarantees a right to every citizen to acquire, hold and dispose of property, subject only to restrictions' which may be reasonable

and in the interests of the general public. Though, therefore, the ostensible reason for pre-emption may be1 vicinage, the real reason behind the law

was to prevent a stranger from acquiring property in any area which had been populated by a particular fraternity or class of people. In effect,

therefore, the law of pre-emption based on vicinage (Section 10(2)) Is really meant to prevent strangers, i.e., people 'belonging to different religion,

race or caste from acquiring property. Such division of society now into groups and exclusion of strangers from any locality cannot be considered

reasonable, and the main reason therefore which sustained the law or pre-emption based on vicinage in previous times can have no force now and

the law must be held to impose an unreasonable restriction on the right to acquire, hold and dispose of property as now guaranteed Under Article

19(1) (f) for it is impossible to see such restrictions as reasonable and in the interests of the general public the state of society in the present day.

From this authority of the Supreme Court I lt is therefore clear that vicinage has been condemned as an unreasonable restriction.

The only point now for determination is whether Article 19(7) saves this ground of pre-emption in the State of Jammu and Kashmir, in this A.

IB.

connection we have to bear the following points in mind. Article 13(1) of the Indian constitution lays down that \

all laws in force in the territory of India immediately before the commencement of the Indian constitution, in so far as they are inconsistent with the

provisions of this part, shall, to the extent of such inconsistency, be void.

Therefore any law prevalent before the Constitution of India came into force in the State of Jammu and Kashmir before 14th day of May 1954

which is in any way in conflict with or inconsistent with the provisions of the Indian Constitution shall be deemed to be void and ineffective.

Experience has shown that not one law but numerous enactments in different states have been struck down under this Article. Therefore if the

ground of vicinage is not covered by Article 19(7) of the Constitution of India as applied to the State of Jammu and Kashmir, it is' struck down as

an unreasonable restriction by the Supreme Court and therefore must be so deemed.

The second point that has to be kept into consideration is that the constitution is prospective and not retrospective. Therefore the question of

deeming any restriction as reasonable would arise only after the Constitution was made applicable' to the State of Jammu and Kashmir, if the

legislature of the State, after the application of Indian Constitution to It, considers any particular restriction as reasonable, that cannot be justifiable

in a court of law.. But unless the legislature expressly, after the application of the Constitution to the State applies its mind to any restriction and

then deems it reasonable, this argument is not available. This can be easily illustrated from the following facts.

in the year 1059 the State legislature considered this matter in the Jammu and Kashmir Alienation of land (Temporary Restriction) Act, 1909,

(Act 21 of 1959) and u/s (J declared:

For the removal of doubts it is hereby declared that the restrictions imposed by this Act on the rights conferred by Clause (1) of Article 19 of the

Constitution of India as applied to the State shall be deemed to be and shall be deemed always to have been reasonable restrictions.

No such mind of the' legislature was ever applied to the provisions of the Right of Prior Purchase Act. Therefore in the absence of any such

declaration by the legislature it would not be proper to impute reasonableness to this restriction when it existed on the Statute long before the

Constitution came into force.

we therefore hold that the Division Bench authority reported as AIR 1963 J. and K 27 (supra) lays down good law and the Full Bench

authority of this Court reported as (S) AIR l955 J. and K. 25 (Supra) should be overruled. In our opinion, therefore, it is not available to the

Plaintiffs to claim a right of prior purchase of the house in dispute on the ground of vicinage. To that extent we endorse and uphold the finding of

the trial court.

As the whole case can be decided on the finding on this issue, the Plaintiffs having failed to prove their right of prior purchase with respect to

the house sold, we hold that the Plaintiff's suit should be dismissed.

We, therefore, accept this appeal and us-miss the suit of the Plaintiffs, but la view of the conflict of authority on the points involved in this case,

we leave the parties to bear their own costs throughout.

S. Murtaza Fazl Ali, J.

I agree.

J.N. Wazir, C.J.

I agree.