HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Reserved on: 19.10.2023 Pronounced on: 07.11.2023 CFA No. 19/2001 Iqbal Singh S/o. Krishan Singh R/o. Poonch City, Tehsil and District, Poonch, Age-45 years …..Appellant(s)/Petitioner(s) Through: Mr. K. L. Pandita, Adv. Q vs 1. Durga Devi W/o. Prithvi Raj, S/o. Jhulass, Tehsil Haveli, District, Poonch 2. Pushpa Devi Widow of Isher Dass 3. Parveen Kumari, D/o. Isher 4. Anita Kumari D/o. Isher Dass 5. Parveen Kumar S/o. Isher Dass From S. No. 2 to 5 All residents of Poonch City .…. Respondent(s) Through: Ms. Mehrukh Syedan, Adv. Coram: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE JUDGMENT 1. The appellant has challenged judgment and decree dated 14.02.2001 passed by the learned District Judge, Poonch(hereinafter to be referred as the trial court), whereby suit filed by respondent No. 1/plaintiff for right of prior purchase has been decreed in her favour and a decree of possession of the suit property has been passed against the appellant/defendant No. 1. 2. It seems that respondent No.1/plaintiff had filed a suit against the petitioner and proforma respondents claiming right of prior purchase in respect of the property comprising a kacha house and vacant piece of land situated in Poonch Town. The said property was purchased by the plaintiff 2 CFA No. 19/2001 from Isher Dass the predecessor-in-interest of the proforma respondents in terms of sale deed dated 26.05.1987. As per the case of the respondent No. 1/plaintiff, she along with father of Isher Dass had jointly purchased the suit property vide sale deed dated 28.04.1976 for an amount of Rs. 11,000/-. It was claimed that the plaintiff and predecessors-in-interest of proforma respondents did not partition the aforesaid property and after the death of Roop Chand the original co-owner of the property in question, his share in the property devolved upon Sh. Isher Dass, the predecessor-in-interest of the proforma respondents. It was further averred in the plaint that one room each out of the joint property that was purchased, remained in possession of the parties but no partition was effected. 3. The plaintiff claimed that she came to know that Isher Dass, the predecessor-in-interest of the proforma respondents was negotiating sale of his share in the aforesaid joint property in favour of the appellant herein and accordingly, a notice was served by the plaintiff through her counsel upon the predecessor-in-interest of the proforma respondents but despite this, he sold his share of the property in question to defendant No. 1/appellant herein in terms of sale deed dated 26.05.1987 for an amount of Rs. 40,000/-. It was pleaded by the plaintiff that actual sale consideration was Rs. 32,000/- but in the Sale Deed it was shown as Rs. 40,000/. 4. On the basis of aforesaid pleadings, the respondent No. 1/plaintiff claimed right of prior purchase against the defendants, on the grounds that property in question was un-partitioned and she being a co-sharer of the property, has right of prior purchase in respect of the said property. Another ground urged by the plaintiff was that the suit property is site of the building and the structure, as such, she has a right of pre-emption. It was also contended 3 CFA No. 19/2001 by the plaintiff that the property in question has a common staircase and a common access and that suit property is a dominant heritage, as such, the plaintiff has a right of pre-emption. It was further contended that the portion of the property belonging to the plaintiff is contiguous to the suit property as such, being an owner of the contiguous property, she has a preferential right of prior purchase to the exclusion of others. 5. The suit was contested by the appellant, the purchaser of the property as well as by the other defendant who was the original co-owner of the property. In their written statements, defendants pleaded that the plaintiff had previously filed a suit in respect of the same property seeking a permanent injunction against the appellant herein in which she had clearly admitted that the suit property had been partitioned. It was submitted that the said suit was dismissed for non-prosecution. The defendants also pleaded that even though the property in question was jointly purchased by the plaintiff and predecessor-in-interest of the proforma respondents, yet the same stands partitioned. It was contended that the portions coming to the share of the two co-owners are separately demarcated specifically and the same are under exclusive possession and enjoyment of the parties. The existence of a common staircase and a common entrance to the suit property was also denied by the defendants. 6. Vide order dated 13.10.1990, the learned District Judge on the basis of the pleadings of the parties, framed the following issues: “Issue No. 1: Whether the plaintiff has a prior right of purchase with respect to the suit property described in annexure-P-I? OPP Issue No. 2: Whether the plaintiff served the defendant No. 2 with a legal notice under Right of Prior Purchase Act, if so, wheat is its effect on the suit? OPP 4 CFA No. 19/2001 Issue No. 3: Whether the suit property has been sold against a full consideration of rupees forty thousand? OPD” 7. After framing of the issues, the parties led evidence in support of their respective cases. The plaintiff besides examining herself as witness, also examined PWs Babu Ram, Puran Chand, Amar Nath, Ali Hassan Mir, Ramesh Chander, Rameshwar Sharam and Chuni Lal as witnesses whereas appellant/defendant No. 1 besides examining himself as witness, has examined DWs Ashok Kumar, Bansi Lal, Om Parkash, Vikrant Kumar, Dwarka Nath, Durga Devi and Raj Nath Bakshi as witnesses in support of his case. 8. Learned trial court after appreciating the evidence on record, passed the impugned judgment and decree, whereby the right of prior purchase of the plaintiff in respect of the suit property was upheld and she was held entitled to a decree of possession on the basis of right of prior purchase subject to payment of Rs. 40,000/- within a period of one month from the date of decree. While passing the impugned judgment and decree, the learned trial court has held that the suit property was partitioned and the plaintiff cannot claim right of pre-emption on the ground of being co-owner of the property. However, the trial court on the basis of the evidence on record came to the conclusion that the property purchased by the plaintiff and predecessor-in-interest of proforma respondents is one single house/building and therefore, plaintiff’s right of pre-emption is covered under clause secondly of Section 15 of the J&K Right of Prior Purchase Act (for short the Act). 9. I have heard learned counsel for the parties and perused the impugned judgment, grounds of challenge and the record of the trial court. 5 CFA No. 19/2001 10. Learned counsel for the appellant has urged only one ground to assail the impugned judgment. According to the learned counsel, plaintiff/respondent No. 1 has not complied with the mandatory condition of deposition of amount of security in terms of Section 20 of the Act and as such, the suit of the plaintiff/respondent No. 1 deserves to be dismissed. 11. On the other hand, learned counsel for the respondent No. 1/plaintiff has contended that before the trial court plaintiff had succeeded in proving by producing cogent and convincing evidence that the property in question was a single unit located in an urban area and as such, she had a right to prior purchase in terms of clause secondly of Section 15 of the Act which vests right of purchase in respect of urban immovable property in the owner of such building/structure. It has been also contended that the appellant/defendant No. 1 is not a State subject as such, the sale deed executed by the predecessor-in- interest of the proforma respondents in his favour is otherwise non est in the eyes of law and that in this regard, a writ petition is already pending before this Court. 12. If we have a look at the record of the trial court on 13.10.1990, the trial court framed issues on the basis of the pleadings of the parties and their preliminary statements recorded under Order 10 of the Code of Civil Procedure. While framing the issues, the learned trial court has recorded that one-fifth of the amount of the alleged consideration money has not been ordered to be deposited and accordingly, a direction was passed to the plaintiff to deposit the same within two weeks. The record further shows that the plaintiff has not deposited the said amount even after the case was finally disposed of. 6 CFA No. 19/2001 13. As already noted learned counsel for the appellant has contended that non-deposit of security by the plaintiff despite specific directions of the trial court in this regard, entails dismissal of the suit. In order to test the merits of this contention provision of Section 21 of the Act are required to be noticed. The same reads as under:- “21. Plaintiff may called upon to make deposit or file security.— (1) In every such suit the Court shall, at, or at any time before, the time of settlement of issues, require the plaintiff to deposit in the Court such sum as in the opinion of the Court equal to one- fifth of the probable value of the land or property, or require the plaintiff to give security to the satisfaction of the Court for the payment of a sum not exceeding such probable value within such time as the Court may fix in such order. (2) In the case of an appeal, the Appellate Court may at any time exercise the powers conferred on a Court under sub-section (1). (3) Every sum deposited or secured under sub-section (1) or (2) shall be available for the discharge of costs. (4) If the plaintiff fails within the time fixed by the Court or within such further time as the Court may fix to make the deposit or furnish the security under sub-section (1) or (2), his plaint shall be rejected or his appeal dismissed, as the case may be. (5) (a) If the plaintiff withdraws any amount deposited in the aforesaid manner, his suit or appeal shall be dismissed. (b) If any security furnished for any cause becomes void or insufficient, the Court shall order the plaintiff to furnish fresh security or to increase the security, as the case may be, within a time to be fixed by the Court, and if the plaintiff fails to comply with such order, the suit or appeal shall be dismissed. (6) The estimate of the probable value made for the purpose of sub- section (1) shall not affect any decision subsequently come to as to the market value of the property. 14. From a perusal of the aforesaid provision, it is clear that in a suit for pre-emption, the court has to require the plaintiff to deposit in the court such sum as in the opinion of the court is equal to one-fifth of the probable value of the property in question or require the plaintiff to give security to the satisfaction of the court for the payment of such sum within such time as the court may fix. Even at the appellate stage, the court has the power to pass such a direction. The direction has to be passed by the trial court at or at any time before the settlement of the issue. 7 CFA No. 19/2001 15. In the instant case, the trial court has at the time of settlement of issues, passed the direction for deposition of one-fifth of the sale consideration, which according to the court, was the probable value of the suit property, and the plaintiff was directed to deposit this amount within a period of two weeks. This has been done by the trial court in terms of its order dated 13.10.1990. Despite this direction, the plaintiff has not deposited the requisite money even after the expiry of the aforesaid period of two weeks. 16. The question arises as to what are the consequences of non-deposit of the aforesaid sum by the plaintiff despite directions of the court. Sub section (4) of Section 21 of the Act quoted above, provides the answer. As per this provision, if the plaintiff fails within the time fixed by the court or within such further time as the court may fix to make the deposit, his/her plaint has to be rejected or his/her appeal has to be dismissed. Similarly, clause (b) of sub section (5) provides that if security is not furnished, within the time fixed, the suit or appeal has to be dismissed. The fact that consequences of non-deposit of one-fifth of the probable value of the suit property or non-furnishing of security, despite directions of the court, entails dismissal/rejection of the suit shows that the condition of deposit or furnishing of security is mandatory in nature. In this context, I am supported by the judgments of this Court in the case of Ahsan Gani vs. Gaffar Doom, AIR 1966 (J&K) 87 and Fatima Bibi vs Ali Mohd and others, 1973 KLJ 301. In Fatima Bibi’s case, (supra) this Court while considering this issue, has observed as under: “3. The principal question that falls for consideration is as to in what cases should the court ask the plaintiff to deposit 1/5th of the probable value of the property in dispute and in what cases should the court direct the plaintiff to give security instead of depositing the money in the court? Is it left to the unguided discretion of the court to make either of the orders as it chooses? According to the argument of 8 CFA No. 19/2001 the learned counsel for the petitioner it should be left to the plaintiff to decide as to whether he or she should deposit the money in the court or give security. The court may pass a composite order calling upon the plaintiff to deposit money in the court or give security. But in our opinion this cannot be so. Section 21 requires, the plaintiff to deposit1/5th of the probable value of the property in dispute or give security. The language of the Section makes it clear that first of all the court-will require the plaintiff to deposit the amount in the court. Then follows the later provision that it may require the plaintiff to give security instead of depositing the amount in the court. It is clear that the court cannot pass a composite order leaving it to the option of the plaintiff to do either of the two. Nor can it be said that it, has been left to the unguided discretion of the Court to order as it pleases. The section is to be interpreted in a harmonious and rational way. It has been engrafted with a view to discourage frivolous and vexatious litigations by testing the financial capacity of the pre-emptor to claim the property. Right of pre-empt being a week right it can be defeated by the vendee by all legitimate ways. To call upon the plaintiff pre-emptor to deposit 1/5th of the consideration money is aimed at on the one hand putting the bonafides of his claim to test; and on the other protecting the rights of the vendee. Non deposit of 1/5th amount will entail the dismissal of the suit. If therefore the section also gives power to the court to require the plaintiff to give security instead of depositing the amount it is to be exercised sparingly to meet certain contingencies; may be that in a particular case the money of the plaintiff is locked in fixed deposit or that he cannot lay his hands immediately on cash because of some bonafide difficulty in his way. It is in such cases that the court may require the plaintiff to give security instead of asking him to deposit cash in the court. But while making such an application by trip plaintiff and while moving the court for this purpose, the plaintiff has to assign some good reason for this. The court will thereupon exercise its discretion judicially.” 17. From the foregoing analysis of law on the subject, it is clear that provisions contained in Section 21 of the Act are mandatory in nature and non-compliance with the said provision despite directions of the court entails dismissal of the suit. In the instant case as already indicated, the plaintiff has not deposited one-fifth of the probable value of the sale consideration within the period of two weeks granted by the trial court. In fact, the plaintiff has not 9 CFA No. 19/2001 deposited the said amount at all even uptill the final disposal of the suit and she has not even made an application before the trial court seeking extension of time in depositing the said amount. It is also revealed from the record that even after passing of the judgment in favour of the plaintiff, whereby she was directed to pay Rs. 40,000/-, she has neither paid the said sum to the appellant nor has she sought permission to deposit the same before this Court. This clearly shows that the plaintiff has acted in breach of Section 21 of the Act. 18. The learned trial court has not taken note of the aforesaid aspect of the matter at all while passing the impugned judgment/decree. Since the deposit of amount in terms of Section 21 of the Act is mandatory in nature, as such, the suit was liable to be dismissed without even going to the merits of the case. On this ground alone, the impugned judgment and decree passed by the trial court is liable to be set aside. 19. Coming to the contention of the learned counsel for the plaintiff/respondent No.1 that the appellant being non-State subject, the sale deed in respect of the suit property in his favour is otherwise illegal. In this regard, it is to be noted that the said question is sub judice in a different proceeding before this Court and if eventually, it is held that sale deed in favour of the appellant in respect of the suit property is non est because he is a non-State subject, decision of these proceedings would be subject to the what would be decided by this court. The issue regarding validity of the sale of suit property in favour of the plaintiff on the ground of his residential status, has no bearing upon this issue which is subject matter of this Suit. Therefore, the contention raised by the learned counsel for respondent No.1/plaintiff is not required to be gone into in the present proceedings. 10 CFA No. 19/2001 20. For the foregoing reasons, the appeal is allowed and impugned judgment and decree passed by the learned trial court is set aside. 21. A copy of this judgment along with trial court record be sent back. (SANJAY DHAR) JUDGE Jammu 07.11.2023 Rakesh Whether the order is speaking: Yes Whether the order is reportable: Yes