Wali Mohammad, etc. vs Faqir Mohamad and Others, etc.

Mian Jalal-ud-din, C.J.—Threecases (1) Wali Mohammad v. Faqir Mohamad and Ors. L.P.A. No. 3 of 1968, (2) Ram Lal v. Abdul Aziz

and Ors. Civil Second Appeal No. 97 of 1971, and (3) Gaffar Ganai v. Abdul Aziz Civil Second Appeal No. 105 of 1972, have been referred to

the Full Bench of an authoritative pronouncement on the question raised in these appeals.

Wali Mohammad v. Faqir Mohamad is Letters Patent appeal against the judgment of Mr. Justice S.M.F. Ali (as his Lordship then was) partly

allowing the appeal of the Appellant which arose from the decision of the District Judge, Poonch in a suit relating to right of prior purchase. In this

case, the Plaintiffs pre-emptors brought a suit for right of prior purchase on the ground that they were the tenants and, therefore, had preferential

right to purchase the land in dispute. During the pendency of the suit, the Defendant vendee improved his status by acquiring by gift a piece of land

in the same khewat from the vendors. According to the vendee he became a co-sharer with the vendors and, therefore, claimed superior right as

against the Plaintiffs pre-emptors, thus defeating the right of the Plaintiffs to claim the property in exercise of right of prior purchase. The suit was,

however, decreed by the trial court as it held that the subsequent acquisition by gift of a piece of land in the Khewat would not improve the status

of the vendees. The court relied upon an authority of this Court reported in AIR 1963 J and K 11 (FB) wherein it is held that a co-sharer basing

his claim as a co-sharer should be a cosharer in the land sold i.e. in the same survey number. As the Defendant vendee had acquired by gift the

land not in the same survey No. but in the Khewat, therefore, he had not become a co-sharer and had not improved his position. The learned

Single Judge also relied upon this authority and allowed the Plaintiff to partly pre-empt the suit property. In the L.P.A. before the Division Bench it

was argued that the view propounded in AIR 1963 J and K 11 (FB) was not correct exposition of law on the subject and, therefore, the view

expressed in the said authority needed re-consideration. A further contention was raised that partial pre-emption was not permissible and therefore

the suit could not be partially decreed. In this case land measuring 28 kanals was sold in favour of vendees for a consideration of Rs. 3,000/ -. The

Plaintiffs being protected tenants of 12 Kanals and 4 Marlas of land only claimed right of prior purchase in respect of this portion of land and not

for the whole. Learned Counsel who argued the case on behalf of the vendee relied upon a Division Bench authority of this Court Lassa Baba Vs.

Gaffar Butt and Others, , in which the view has been laid down that unless a tenant is a tenant of whole of the property under sale he is not entitled

to claim right of prior purchase for a part. This authority is against the rule of partial pre-emption. The Division Bench was of the view that

substantial questions of law were raised before it and also doubt was expressed about the correctness of the view laid down in the aforesaid

authority. Identical questions relating to partial pre-emption are also involved in the other two aforesaid cases viz Gaffar Ganai v. Abdul Aziz and

Ram Lal v. Abdul Aziz and these cases have also been referred to the Full Bench. This is how the cases have come up before us.

It may, however, be stated here that after the arguments in the cases were heard, Mr. L.K. Sharma for the Appellant in Appeal No. 97 of

1971, Ram Lal v. Abdul Aziz, came with a statement that as the parties had entered into a compromise, therefore he did not press this appeal. As

the learned Counsel did not want judgment in the aforesaid appeal because of the compromise effected between the parties, therefore, this appeal

is dismissed as not pressed.

This judgment will dispose of the two remaining appeals.

In L.P.A. No. 3 of 1968 besides the question of partial pre-emption, the question relating to improvement in the status of the Plaintiffs by virtue

of his having acquired a piece of land by gift in the Khasra is also involved.

In Gaffar Ganai v. Abdul Aziz civil second appeal, the learned District Judge. Bhadarwah confirmed the decree of the Sub Judge, Bhadarwah,

dismissing the Appellant's suit for pre-emption. Sunderoo and Chundu vendors, sold 26 Kanals and 8 Marlas of land in favour of Abdul Aziz

Ganai on the basis of a sale deed dated 20-5-1965, for a consideration of Rs. 1000/ -. The Appellant who sought to exercise the right of prior

purchase brought suit only in respect of 2 kanals and 18 Marlas on the ground of his being a tenant along this portion of land. The court below

dismissed the suit on the ground that it was hit by the doctrine of partial pre-emption.

Appearing for the Appellant in L.P.A. No. 3 Shri S.P. Gupta has canvassed two propositions of law, viz. that the vendees had improved their

position by the subsequent acquisition of land by gift in the same Khewat and, therefore the suit of the Plaintiff stood defeated. He has submitted

that the F.B. authority AIR 1963 J and K 11, relied upon by the courts below as also by the learned Single Judge was not good law. The view

expressed therein has been overruled by a larger Bench of this Court in 1971 J and K LR 517 : AIR 1972 J and K 28 (FB). In the latter authority

the Full Bench held that survey No. being a part of the Khewat any transfer from any other survey No. makes the transferee a co-sharer in the

entire Khewat up to the time of partition. It is no consequence whether transfer of land from one Survey No. alone is made in favour of a

transferee without including any share of land comprised in the other survey Nos. If the Khewat is joint any portion of that Khewat in any survey

No. has the incidence of the joint property and each co-sharer is in the eye of law master of each parcel of that joint land and the transferee also

becomes a co-owner or a co-sharer to the extent of his share. A vendee by purchasing land from any other Survey No. in the same Khewat in the

same village becomes a cosharer with the other co-sharers of the Khewat and, therefore, can successfully defeat the right of pre-emption of the

Plaintiff-pre-emptor.

There can be no dispute with regard to the proposition of law laid down in the aforesaid authority of FB (AIR 1972 J and K 28) (supra) that if

land is purchased from the joint Khewat not necessarily from the same No. but from different survey Nos. that makes the purchaser a co-sharer in

the joint Khewat. But the observation made in the judgment is quite significant that the Khewat amongst the co-sharers must be joint. The authority

will apply to those cases where a survey No. being a part of the joint Khewat is purchased from the Khewat that will make the purchaser a co-

sharer with the other holders of joint Khewat. The authority can have no application where if the land is purchased from a survey No. which is not

held in the joint Khewat as that will not make the purchaser a co-sharer in the Khewat at all. Let us, therefore, examine whether the subsequent

acquisition by gift of the land in Khewat No. 1 has made the vendees cosharers in the Khewat so as to defeat the right of pre-emption of the

Plaintiffs-pre-emptors. It is admitted that the suit land sold by the Defendant vendor was selected by him as his unit of 182 kanals under the Big

Landed Estates Abolition Act (hereinafter called as ""the Act""). The effect of selection of 182 kanals in the khewat by the vendee had the effect of

extinguishing his title in the rest of Khewat and also the title of other co-sharers therein i.e. in 182 kanals selected. The learned Single Judge who

heard the second appeal observed that the learned appellate court while accepting the evidence of the Plaintiff found that the Defendant vendor

had selected those lands in his unit of 182 kanals under the Act and thus the title of other co-sharers if any, stood extinguished. These facts as

observed by the learned Judge were not disputed by the learned Counsel for the Appellant before him. It is also significant that in the application

for leave to file L.P.A. and also in the L.P.A. itself the counsel for the Appellant averred that the Appellant and the Defendant-vendor who became

landlords under the provisions of the Act, were required to make selection of 182 Kanals per head and the selection was made by them in

compliance with the requirements of the said law. The survey Nos. have also been given in the list of their selection. However according to Shri

S.P. Gupta, this averment in the memo of appeal will not have any adverse effect on his case inasmuch as any separate selection of the unit of 182

kanals according to him cannot amount to partition of the land between the co-sharers by operation of law. In spite of the selection the position

would remain that the landlord who did not select the land in his name remained the landlord and also a co-sharer in the land selected by his other

co-sharers. Separate numbers and separate claims as envisaged in the Act are, it is argued, to delineate the unit of 182 kanals per head under the

Act and to make it arithmetical and numerical figure. Therefore, in spite of separate claims made and separate selection of separate numbers, the

Appellant, it is submitted, nevertheless remained co-sharer with the vendor even after the choice and selection was made by his co-sharers.

I am afraid the contention raised by Mr. Gupta is not well founded. On a careful appreciation of the legal position it becomes abundantly clear

that when selection is made in pursuance of the provisions of the Act, the selection of 182 Kanals to all intents and purposes amounts to partition.

The scheme of the Act shows that it is a complete code in itself and provides full machinery for the implementation of the policy of Legislature. u/s

4 of the Act, the proprietary rights having been extinguished the right of ownership is to vest in the proprietor except to the extent as indicated in

Sub-clause (2)(a) i.e. 182 kanals and other areas as mentioned in the said clause. Under Sub-clause (3) every proprietor is called upon to make a

selection of the land mentioned in Clause (a) of Sub-section (2), the landlord has to intimate the Khasra No. and the areas within the specified

period. After the selection is made the Revenue Officer is duty bound to demarcate the said land on spot and in case any of the proprietor fails to

comply with the notice of selection, the revenue officer is required to reserve the land to himself for the defaulting proprietor and the land so

reserved is to be deemed to have been selected by such proprietor himself. The words occurring in Clauses (a) and (b) of Sub-section (1) of

Section 14 of the Act are indicative of the fact that the selection made and the demarcation effected amounts to separation of possession and also

separation of ownership rights in the joint holding hitherto possessed by all the co-owners and co-sharers. After the selection is made and the

demarcation is effected further proceeding is to be followed. u/s 16 of the Act, there is revision and preparation of the record. All disputes arising

between the parties are to be decided by the Revenue officer. All orders passed are to be deemed to be final determination of right or title in

respect of the land about which entry has to be made in the record of Register. Therefore, when selection is made and consequent upon the

selection the demarcation is effected on spot and mutation is attested and the land so selected is recorded in the relevant register, can it be said that

the holding continues to be joint? In my opinion it cannot be said to be so. The selection made will have the effect of virtual partition. The same

question arose before a Division Bench of this Court reported in 1975 J and K LR 287, to which I was a party. The Division Bench held:

A combined reading of the various provisions of the Act indicates that a selection u/s 14 of the Act by the co-sharers of a joint Khewat or on

behalf of any one of them by revenue officers operates as a partition of the Khewat and there is not merely a separation of the possession but also

a separation of proprietary rights which later on bars any co-sharer from claiming partition. The overriding provision of Section 4(1) of the Act

relating to extinction of ownership held by a proprietor also lends support to this view.

The executive instructions No. 42 contained in Chapter VII of the Instructions issued by the Revenue Minister and relied upon by Shri S.P. Gupta,

have got no statutory force. These instructions have been laid down only for the guidance of the Revenue Officers and the Instruction No. 42 relied

upon cannot be taken to mean that the Khewat would continue to remain as joint in spite of selection as it would run counter to the very scheme of

the Act especially Sections. 4 and 39 of the Act. In view of what has been stated above, 1974 J and K 743 (sic), can be of no assistance to us in

arriving at a different conclusion.

In the light of the above made observations it is found that in the instant case the land that was sold by the vendor to the vendees was not from

the joint Khewat but was from that area of the land which had been selected by the vendor u/s 4 of the Act. Therefore, it would be deemed that

the selection of 182 kanals of land made by the vendor had the effect of partitioning his land from the joint khewat held by the other co-sharers. As

the land so selected was held in separate possession and ownership by the vendor, therefore, he could not by transferring some Kanals of land by

gift from the divided Khewat make the vendee a co-shares in the Khewat. Moreover, it is doubtful if after the sale of the land in favour of the

vendees any other land had been left out in the Khewat in his ownership rights. That this appears to be so can be gleaned from the statement of

Chuni Lal Patwari which is to the following effect:

(Matter in Urdu omitted--Ed.)

There is also a note of the Patwari appended at the foot of the copy of Misal Haqiat Ex. D-l, which is a follows:

(Matter in Urdu omitted--Ed.)

The result of the above discussion is that it is found that there was no joint Khewat out of which Faqir Mohamad vendor could gift away land

from a different survey No. to the vendee. Therefore, it could not be said that the vendee had become a co-sharer in Khewat No. 1 along with the

Plaintiffs and that they had improved their status vis-a-vis the Plaintiffs-pre-emptors.

There is yet Anr. important fact which is to be taken notice of. The gift deed dated 2-4-1965 executed by Faquir Mohamad does not show as

to from which survey No. out of Khewat No. 1, one Kanal has been donated to the vendees. Moreover, there is nothing in the gift deed to

indicate that this gift was accepted by the donees. This gift being by a Muslim in favour of his co-religionist must be under the Mohammadan Law.

It must be established that it was accepted by the donee. This has not been established by the vendees. Moreover, there is yet Anr. anomaly about

this gift deed The vendee donee Ghulam Hassan has appeared as a witness of his own. He has stated that he paid Rs. 400/- to the donor vendor

as consideration for the gift. If it was a gift then how it could be for consideration? This would detract from the attribute of a gift. In this way also

the gift deed suffers from a serious legal infirmity. I am not, therefore, disposed to hold that it was a valid gift made in favour of the vendees which

will have the effect of improving their status and would, therefore, defeat the right of prior purchase of the Plaintiffs.

The second proposition relates to the doctrine of partial pre-emption, and this question is germane to both the cases referred to the Full Bench.

It was argued before us that the rule against partial pre-emption is applicable only to those cases where the right of prior purchase is available to a

Plaintiff in respect of the whole bargain and he deliberately, avoids to pre-empt the entire sale and restricts his claim to a portion of the bargain. But

the doctrine will have no application where the right exists only for a part and not for whole of the bargain. For instance, where 30 kanals of land

are sold by A to B and C is the tenant of the entire land but he omits to bring his suit with respect to 30 Kanals of land and files suit only in respect

of a portion of land, then, his case would be hit by doctrine of partial pre-emption as right of prior purchase in respect of the entire sale is available

to him. He cannot be allowed to pre-empt partially. But where a pre-emptor has a limited right of pre-emption in respect of a portion of property

and his right of pre-emption does not extend to his claiming the entire subject-matter of sale, he cannot be compelled to bring a suit for the whole

bargain as that right not being available to him, he is not obliged to do so. Again it is urged that if two separate pieces of land are situated at two

different places and these are sold by one sale deed, and A has got right of prior purchase only in respect of one piece of land at one place and not

in respect of the other piece of land situate at the second place, then the right of complete substitution not being available to A, his suit cannot be

thrown out on the ground that he has not brought suit in respect of both the pieces of land. It is submitted that this view has been adopted by the

Judicial Board of Advisors in 3 J and K LR 210, where their Lordships have observed as follows:

Another ground on which the Plaintiffs' right of prior purchase has been assailed by the vendee in her appeals is that the Plaintiffs are suing for

enforcement of their right of prior purchase in respect of part only of the property sold under the two sale deeds, which cover not only the shares in

village Chorli but also in village Harsadaba. It is contended that inability of the Plaintiffs to sue for pre-emption in respect of the shares in the latter

village is immaterial as the fact remains that they are suing for part only of the property sold by the vendors. This contention is clearly untenable.

Where the Plaintiff in a pre-emption suit can pre-empt the whole of the property transferred by the sale deed on which the suit is founded, but

limits his claim to part only, of the property, his suit is liable to dismissal, but where he is entitled to claim only part of the property on payment of

the price payable in respect of it; the suit is not open to objection on the score of part pre-emption.

A catena of authorities have been cited at the bar in support of the respective contentions raised before us. It is true that there is divergence of

opinion amongst the Indian High Courts on the question posed before us. The balance of authority is, however, in favour of the proposition that the

suit of the pre-emptor is not hit by the rule of partial pre-emption if he cannot pre-empt in respect of the whole property. Apart from the authorities

which will 'be discussed hereinafter, the authority of the Board of Judicial Advisors, being in favour of the proposition that the suit in such

circumstances cannot be thrown out is binding upon this Court. It is pertinent to quote with advantage the following observations relating to the

binding nature of the judgment of the Board made by me in AIR 1970 J and K 72 (FB) to which I was a party (at p. 84).

It is important to examine the precise nature and scope of the decisions given by the Board whose advise has been accepted by His Highness. In

my opinion, these decisions are not and cannot be said to be laws in the sense that these are pieces of legislation which have originated and

emanated from His Highness. One must not lose sight of the fact that the performance of the functions of the Board was merely judicial and they

had no legislative assignment. In the words of their Lordships of the Board the question of a particular case before them was res integra and their

Lordships were free to arrive at a conclusion on the terms of the statute in force in the State unhampered by any judicial decision binding on them

(vide the observations of the Board made in Civil Appeal Nos. 20, 21, 22 and 23 of 2001). This shows that the task before the Board was only to

interpret the legal proposition with which they were confronted. The interpretation of the Board on these legal propositions is undoubtedly binding

on all the courts and the authorities in the State, But it cannot be said that the decisions given by the Board and assented to by His Highness have

the characteristic of any Ailan, command or order or Irshad as contemplated by Section 4 of Sri Partap Jammu and Kashmir Consolidation of

Law. Being the highest Court of appeal, the decisions of the Board are entitled to great weight and respect and are binding on the High Court as

well as on the subordinate courts just like the decisions of the Privy Council. But if the decision of the Board is overruled either in express terms or

by implication by any decision of the Supreme Court, the judgment given by the Supreme Court will prevail.

As indicated above, the principle has been well settled by the Board that where the Plaintiff in a pre-emption suit can preempt whole of the

property transferred by the sale deed on which the suit is founded, but limits his claim to part of the property only, his suit is liable to be dismissed.

But where the Plaintiff is entitled to claim only part of a Property in exercise of right of prior purchase and is prepared to pay the price payable in

respect of that part, the suit is not open to objection on the score of partial pre-emption.

In Emperor Vs. Malkhan Singh, , Sulaiman C.J. with Bennet J. took the view that a pre-emptor cannot be allowed to pick and choose and

pre-empt as much of property as he considers convenient to get. In that sense partial pre-emption cannot be allowed. On the other hand, the mere

fact that the vendee has included in the sale deed some property to which the pre-emptor has no right of pre-emption at all, would not deprive the

pre-emptor of his right to pre-empt the property as to which he has a right. In that situation the pre-emptor is not obliged to sue in respect of the

whole bargain.

In AIR 1968 Punj and Har 141 (FB), Falshaw C.J., speaking for the Bench observed that the right of pre-emption being generally limited to

the extent of pre-emptor's right, a pre-emptor is not bound to claim the whole, when his right of pre-emption extends to part of it. Section 13 of

the Punjab Pre-emption Act, (which corresponds to Jammu and Kashmir Right of Prior Purchase Act) has been construed to mean that a person

is entitled to pre-empt in case of joint sale, the share of vendor or vendors through whom he claimed his right and not the sale in its entirety.

In 1882 Pun. Re. Case No. 107 (FB) entitled Sardar Lal Singh v. Dewa Singh the Punjab Court held that where a person is an owner of

several and distinct properties of which one is subject to right of pre-emption, and if he sells such properties in a single bargain to a person other

than the pre-emptor, the latter is entitled to bring a suit and enforce his right in respect of that property over which he can exercise his right of pre-

emption without suing to take over the whole bargain.

In Teekam Ram Vs. Mangtu and Others, , a Division Bench of the court ruled that the right of pre-emption is a right of substitution but it does

not extend to the whole of the bargain as settled by the vendor when he is qualified to exercise that right and it extends only to a portion of that

property. The pre-emptor is not bound to claim the whole when his right of pre-emption extends only to a part of it. That was a case where the

pre-emptor's right was limited only to a part to which his tenancy extended, which is exactly the case before us. Partial pre-emption was ordered

on payment of the amount which represented the market value and not the sale price of that portion.

The question was again debated before the Punjab and Haryana High Court in Moti Ram and Others Vs. Bakhwant Singh and Others, . The

court had an occasion to deal with the sale of the land where the aforesaid view was affirmed.

As against this reliance has been placed by the other side on Lassa Baba Vs. Gaffar Butt and Others, and Bishan Singh and Others Vs.

Khazan Singh and Another, .

It is true that the ratio laid down in some of the above mentioned authorities is to the effect that partial pre-emption is not permissible, but each

case is to be judged on its own merits. The cumulative effect on consideration of the authorities of the Indian High Courts is that these authorities

do not run counter to the principle enunciated in 3 J and K LR 210 (supra). Nor is there any indication found that Bishan Singh and Others Vs.

Khazan Singh and Another, has overruled 3 J and K LR 210 (supra). Let us examine these authorities.

AIR 1914 Lah 128 (supra) was a case where the sale transaction was regarded as indivisible inasmuch as the purchase money was paid in

lump without specification of the amounts paid by the various vendees. It was held that the sale transaction in such circumstances was to be

regarded as a whole and the bargain was one and indivisible. The question of apportionment of the price fixed in the sale deed was not considered.

In AIR 1945 Lah 184 (FB) (supra) it was held that the right of pre-emption being a right of substitution therefore, if a person wishes to get

himself substituted for the vendee in exercise of that right, he must claim the whole of the property over which he has right of pre-emption and

cannot leave out any portion thereof at the peril of losing his right altogether. This authority can be considered more in favour of the Plaintiffs-pre-

emptors than in favour of the Defendants vendees. This authority takes cognizance of the fact that the Plaintiff must have a right to pre-empt in

respect of the entire property. The learned Judge who delivered the judgment of the Full Bench, expressly observed that pre-emptor must always

claim the maximum to which he is entitled, otherwise his failure to do so would result in dismissal of his claim on the ground that he was suing for

partial pre-emption. Since the pre-emptor cannot sue for part of the bargain where he is entitled to sue for the whole, it would not be open to him

to sue in respect of the share of certain vendees only when the bargain entered into between the vendor on one hand and all the vendees on the

other, is joint and the cause of action is invisible. The question is: are the Plaintiffs in the present case entitled to sue for the whole? The answer is in

the negative inasmuch as the Plaintiffs cannot claim the maximum to which they are entitled because of their limitation which prevents them from

exercising right of prior purchase, in respect of the whole.

AIR 1929 PC 58 (supra) was a case Where the vendee had filed an appeal from a decree making all the Plaintiffs Respondents pre-emptors

as parties and one of the Respondents had died before the appeal was heard and the appeal had abated against him. Then because his legal

representatives were not brought on record within time and the appeal was heard in absence of legal representatives of the deceased Respondent

and decree of the first court was reversed and the suit was dismissed as against all the Plaintiffs, the legal representatives of the deceased

Respondent against whom the appeal had abated, could not be bound by the appellate decree. They were entitled to exercise the right to pre-empt

the whole. They could not be allowed to pre-empt only for the part as a stranger purchaser could not be required to submit to a partial pre-

emption. In that case, the High Court had decreed the suit of pre-emption to the extent of l/4th of the suit property leaving Defendant vendee in

possession of the remainder. Their Lordships did not accept the view of the High Court and held that as the representatives could bring the suit for

the whole, he could not be allowed to pre-empt only for the part. This is not the case before us.

1973 J and KLR 454, was a case where the pre-emptor had omitted to pre-empt in respect of some properties sold. Later on he moved an

application for amendment under Order 6, Rule 17 and sought to claim pre-emption in respect of the remainder. This application was not allowed

as it was held that the effect of allowing the application would be to deprive the Defendant vendee of his valuable right which had accrued to him

by lapse of time. This authority can, therefore, have no application to the facts of the present case.

Lassa Baba Vs. Gaffar Butt and Others, no doubt, lays down the view that supports the argument of the learned Counsel for the Plaintiffs. But

this authority needs to be reconsidered in view of the principle laid down by the Board of Judicial Advisors. This authority, it seems, was not

brought to the notice of their Lordships of the High Court when this case was decided.

Great reliance is, however, placed upon the authority reported as Bishan Singh and Others Vs. Khazan Singh and Another, . Attempt is sought

to be made by the learned Counsel for the vendees to draw the conclusion from the observations made in the aforesaid authority that the rule

against partial pre-emption is absolute and unqualified. It is urged that the Supreme Court has ruled against partial pre-emption in categorical terms

and has laid down that the right of prior purchase is a right of substitution and not of re-purchase. The pre-emptor has, therefore, to take the entire

property and he cannot be allowed to take the bargain in part. In order to sustain the argument, learned Counsel has relied upon the following

observation of the Supreme Court (at p. 841):

The right of pre-emption is not a right to the thing sold but a right to the offer of a thing to be sold.... 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 vendees. It is a right to acquire the whole of the

property sold and not a share of the property sold, preference being, the essence of the right. The Plaintiff must have a superior right to that of the

vendee or to person substituted in his place. The right being a very weak right it can be defeated by all legitimate methods.

According to the learned Counsel the authority gives no option to a pre-emptor to claim a part of the property in exercise of his right of prior

purchase. He has to take the whole of the bargain and not part of it. He must pray for substitution in place of the vendee not only for a part of the

property sold but for the entire property as a whole.

On a careful perusal of the aforesaid authority I am afraid the argument raised at the bar is not tenable. This is not the true import of the

authority. From the language of the authority it is nowhere indicated that a pre-emptor is debarred from exercising his right of pre-emption where it

extends only to a part of the property sold. As already observed above, there can be no dispute with regard to the proposition that where a pre-

emptor is entitled to ask for substitution for the entire property, he must pre-empt for the whole bargain and if does not do that, his case will be

thrown out on the score of partial pre-emption.

The argument that the pre-emptor must take over the whole of the bargain and must ask for substitution was examined by a Full Bench of the

Lahore High Court in 1882 Pun Re Case No. 107. While considering this proposition, the Full Bench observed as follows:

The principle that the pre-emptor is bound to take over the whole of bargain as settled by the vendor is a principle which may be admitted to the

extent that the pre-emptor cannot omit to claim any portion of the property comprised in the bargain to which his right of pre-emption extends but

it cannot be held to claim the whole of the property sold when his right of pre-emption extends over only to a portion of such property.

In my opinion the words used by their Lordships of the Supreme Court ""that the right of pre-emption is a right of substitution and that the pre-

emptor takes the entire bargain"" is to be read in this context. The above observations of the Full Bench of the Lahore High Court furnish answer to

the question as to what is meant by the expression ""must take over the whole of the bargain"". The authority of the Supreme Court cannot be

construed to lay down categorical and absolute rule against partial preemption. As a matter of fact the question of partial pre-emption was not at

all dilated before their Lordships in the aforesaid case. Neither was it raised in the appeal, nor was it under the consideration of their Lordships. In

that case what had happened was that the Defendants had sold the land to A on 26-8-1949. B in exercise of his right of preemption brought suit

on 26-8-1950. The parties compromised on 6-1-1951 according to which B had to pay consideration to A on 27-4-1951 and had to get

possession through court. A compromise decree was passed on 27-4-1951. In accordance with the terms of the compromise which provided that

in case B did not pay the consideration on the specified date, his suit would stand dismissed. The possession of the land was to be delivered to B

by A on deposit of consideration. Before B deposited the amount Anr. person C claiming the right of pre-emption filed a suit to enforce his right. B

deposited the amount subsequently and got the possession of the land. It was held that B's right of pre-emption was subsisting at the time when he

deposited the amount and took possession of the land for he had not only filed the suit but had obtained a decree and had complied with the terms

of the decree as coercive process was still in operation his case was not, therefore, hit by the doctrine of lis pendens and he acquired indefeasible

right to the suit land when he took possession of the land pursuant to the terms of the decree. As B had been substituted in place of the vendee

before C's suit was disposed of, therefore, C, although he had an equal right could not pre-empt and was not entitled to a decree for only a share

of the land. The Additional District Judge who had earlier decreed the suit of ""C"" had found equal of pre-emption between C and B and had held

that both of them were entitled to share the sale in proportion of 3/7 to 4/7 respectively on payment of proportionate amount of consideration. He

had also upheld part of the decree of the District judge holding that C was entitled to a share in the suit property. It was in this context and in these

circumstances that their Lordships of the Supreme Court observed that the right of pre-emption is a right to acquire the whole of the property sold

and not a share of the property sold and that the pre-emptor takes the entire bargain and steps into the shoes of the original vendee. It is clear that

the question of partial pre-emption in the nature in which it has been raised before us did not at all fall for consideration before their Lordships. In

my view, therefore, the authority of Bishan Singh and Others Vs. Khazan Singh and Another, is not an authority for the proposition as canvassed

by the learned Counsel for the vendees.

Therefore, the view laid down by the Board cannot be said to have been superseded by the Supreme Court. The decision of the Board is,

therefore, binding upon this Court.

In the cases before us, it is noticed that the Plaintiffs are entitled to exercise their right of pre-emption only in respect of that portion of the

property for which they brought the suit. Their right to claim the property in exercise of their right of prior purchase and their claim for substitution

does not extend to the whole of the bargain but only to a portion thereof. They can therefore, in exercise of that right pre-empt only for that portion

of the property over which they have got the right of pre-emption. The Plaintiffs are not obliged to bring their suit in respect of the whole bargain as

that right is not available to them. I, therefore, hold that partial pre-emption in the present circumstances can be allowed and the suits of the

Plaintiffs are, therefore, maintainable. The decision rendered in Lassa Baba Vs. Gaffar Butt and Others, not being good law on the subject is,

therefore, overruled.

There is yet Anr. argument raised by Shri J.S. Kotwal which requires to be disposed of. The argument is that as the Jammu and Kashmir Right

of Prior purchase Act imposes restriction on free sale of the property, therefore, it is hit by Article 19(1)(f) of the Constitution.

The determination of question relating to reasonable restriction does not fall within the competence of the court and thus this question is not

justiciable as the power has been given only to the Legislature vide Clause (7) of Article 19. The Legislature, it is submitted, has not so far opined

upon the reasonableness of the restriction of the Act, and, therefore, the said Act is hit by the doctrine of eclipse. The court, it is submit ted, must

therefore, stay its hands and leave the matter to be decided by the Legislature.

It, however, appears that this matter is no longer res integra and has come up for consideration before this Court as also before the Supreme

Court of India.

In 1965 Kash LJ 105 : AIR 1965 J&K 62 (FB), the court had the occasion to examine the constitutional legality of the ground to claim

property in exercise of right of prior purchase on the ground of easement u/s 15 of the Right of Prior Purchase Act. Article 19(7) was also

discussed. Following the view expressed in Bhau Ram Vs. B. Baijnath Singh, it was held that the ground of easement as provided in Section 15 is

a reasonable restriction within the meaning of Article 19. It was, however, observed that in the absence of any declaration by the legislature to the

contrary reasonable restriction could not be imputed to the ground of vicinage on the basis of right of prior purchase could be claimed. The Court

held that right of prior purchase on the basis of vicinage was not a reasonable restriction and was, therefore, hit by Article 19(1)(f). That the Full

Court expressed its view on the question of reasonable restriction is clear from the authority and it, therefore, runs counter to the argument of Mr.

J.S. Kotwal that the matter is not justiciable.

In Bhau Ram Vs. B. Baijnath Singh, , the validity of the law of pre-emption was examined and it was held that the law of pre-emption which

gives right of pre-emption imposes a reasonable restriction within the meaning of Article 19(1)(f) as it was in the interests of the general public. The

court held that pre-emption based on co-sharership is a reasonable restriction on right to acquire, hold or dispose of the property. In the same way

pre-emption on the basis of easement was also a valid ground and reasonable restriction.

Again in AIR 1967 SC 1578 their Lordships had an occasion to pronounce upon the validity of the Jammu and Kashmir Right of Prior

Puchase Act. It was held that Section 15 which provides for the right of prior purchase does not amount to an unreasonable restriction so as to be

hit by Article 19(1)(f) of the Constitution.

In view of these pronouncements of their Lordships of the Supreme Court, it is hardly open to Mr. Kotwal to raise this plea before us and that

too for the first time in Second Appeal. The contention is, therefore, overruled.

This brings us to Anr. question raised by Mr. Amar Chand the learned Counsel for the vendee in appeal No. 3 of 1968 in regard to his cross

objections challenging the proportionate amount of consideration awarded by the learned Single Judge and the courts below. An objection was

taken on behalf of the Appellant that these cross-objections are not competent as these could not be filed without the leave of the court. Just as in

Letters Patent Appeal leave has to be sought, in the same way leave of the court must be sought for filing the cross objections. Reference is made

to 1971 J and K LR 605 (FB).

I, however, do not agree with this objection as in my opinion, Order 41 of the CPC applies to L.P. As. As Order 41 permits the filing of the

cross objections by the Respondent there is no warrant for the conclusion that the procedure indicated in the aforesaid order does not apply to

cross objections and that leave of the Court is a must before they are filed. It seems that while deciding the aforesaid authority the learned Judges

did not notice the observations made in AIR 1921 PC 80 at p. 82, where it was held that the provisions of Order 41 apply to appeals under

Letters Patent as also to appeals under the Civil Procedure Code. This view laid down by the Privy Council is binding as long as it is not overruled

by the Supreme Court. The restriction to seek leave to file L.P.A. does not apply in the case of cross objections. There is nothing in the Rules

which lays down such a course to be adopted. I, therefore, hold that cross objections are maintainable and no leave of the court is required in their

case.

On merits I, however, do not find any reasons to interfere with the mode of apportionment as indicated in the judgments of the learned Single

Judge as also of the court below. Nothing has been shown as to how the apportionment made is incorrect or illegal. The procedure adopted by the

courts below to determine the proportionate price in not faulty. According to the learned Single Judge the proportionate consideration which the

Plaintiff in Appeal No. 3 of 1968 should pay for 12 Kanals and 4 marlas of land is Rs. 1302/ -. This finding we affirm.

After the above discussion, the following picture emerges in all the three cases.

Appeal No. 97 of 1971, Ram Lal v. Abdul Aziz, stands dismissed as not pressed.

In appeal No. 3 of 1968 Wali Mohamad v. Faqir Mohamad, the Plaintiff is entitled to claim partial pre-emption only for 12 Kanals and 4

Marlas of land of which he is the tenant. The Defendants-vendees cannot be said to have improved their status by acquiring by gift a piece of land

in the divided Khewat. The pre-emptors can be substituted for the above mentioned land if they pay Rs. 1302/- as part of consideration. The

cross objections filed by the Respondents in the said appeal stand hereby dismissed.

In Appeal No. 105 of 1972, Gaffar Ganai v. Abdul Aziz, the Plaintiff is entitled to a decree in exercise of the right of prior purchase in respect

of 2 kanals and 18 marlas of land, on the ground of his being the tenant of the land. As the suit has been dismissed by the trial court after deciding

the preliminary issue with regard to its maintainability, the suit will have to be remanded to the trial court for deciding the other issues in the case.

The result is that in appeal No. 3 of 1968, a decree for right of prior purchase in respect of 12 Kanals and 4 Marlas of land is passed in favour

of the Plaintiff against the Defendants-vendees on payment by the Plaintiff of Rupees 1302/- as consideration thereof. The amount will be

deposited in the trial court by the 30th of June, 1978, failing which the suit of the Plaintiff shall stand dismissed.

Appeal No. 105 of 1972, Gaffar Ganai v. Abdul Aziz, is hereby allowed. The suit of the Plaintiff is held to be maintainable. The case is,

however, remanded to the trial court for disposing of the other issues in the suit.