Holding

The decree granting pre‑emption was void as it was based on a repealed contiguity provision, and execution of that decree is to remain stayed pending the disposition of the pending suits.

Summary

The dispute concerned a four‑room property in Jammu that was sold by Issar Dass to Ved Paul Gupta, who later sold it to Shashi Kant and then to Raj Kumar, the tenant. Devi Dass (respondent No. 1) filed a pre‑emption suit in 1978 under the J&K Rights of Prior Purchase Act, 1936, claiming a right based on the property’s contiguity to his own land. The trial court granted a decree in 1984, but the amendment to the Act in 1973 had deleted the contiguity provision, rendering the claim void. J.C. Sehgal (appellant) bought the property from Raj Kumar in 1998, was unaware of the pending suit, and faced execution of the 1984 decree. He filed applications under Order XXI of the CPC and a separate suit challenging the decree’s validity. The High Court set aside interim orders and allowed the respondent’s revision. The Supreme Court held that the decree was based on a repealed provision and was therefore a nullity, stayed its execution pending the pending suits, and allowed the appeal, setting aside the High Court’s judgment.

Issues considered

The validity of the pre‑emption claim under Section 15(6) of the J&K Rights of Prior Purchase Act, 1936 after its 1973 amendment
Whether the 1984 decree granting pre‑emption was issued on a provision that had been repealed, rendering it void
Whether execution of a decree against a person who was not a party to the decree can proceed while related suits are pending
Whether the High Court could set aside the interim order of the Additional District Judge without it being specifically challenged

Legislation cited

Code of Civil Procedure, 1908s. Order XXI Rules 58, 99, 101, s. Order XXXIX, s. Order XXXXIII Rule 1(r), s. Section 151, s. Section 94

Subjects

Pre‑emptionRight of Prior PurchaseContiguity clauseVoid decreeExecution of decreeStay of executionProperty lawCivil Procedure

Judgment

J.C. SEHGAL
v.
DEVI DASS AND ORS.

APRIL 27, 2004

[S. RAJENDRA BABU, DR. AR. LAKSHMANAN AND G.P. MATHUR, JJ.] B,

J & K Rights of Prior Purchase Act, 1936:

Section 15 (as amended in 1973)-Pre-emption-Right of-Contiguous-
cum-vicinage-Provision relating to-Deleted by amendment in 1973-Ejfect c'
of-Property consisted of four rooms and land appurtenant thereto sold by
owner to one ID - ID was accepted as landlord by tenant in one of the rooms
- ID sold to one VP in 1977 the portion under tenancy-Plaintiff challenged
the sale by way of a preemption suit on the ground that the property
purchased by VP was contiguous to land belonging to him-During pendency D
of the suit VP sold the property to SK who, in turn, sold the same to the said
tenant-Trial court decreed the suit in 1984-Defendant purchased the
property from the said tenant in 1998-Plaintifffiled petition for execution
of decree in 2000-Defendant pleaded that he had no knowledge about
pending of preemption proceedings or the order passed thereon-Defendant
also filed a separate suit for declaration and perpetual injunction-Suit still E
pending-Held: Plaintiff sought preemption on a non-existent provision of
law-Therefore, the decree sought to be executed is a nullily-'-Hence, the
defendant who is in possession of the property pending disposal of the suit
filed by him cannot be dispossessed-Code of Civil Procedure, 1908, IJ. 21
R. 58 and 0. 39 Rr. I and 2. ·
F
The suit property comprising of four rooms along with land appurtenant
thereto, was sold to one ID. The tenant in one of the rooms accepted ID as his
landlord. ID sold the portion under tenancy to one VP. Respondent No.I I
plaintiff challenged the said sale by way of a preemption suit under the J &
K Rights of Prior Purchase Act, 1936 on the ground that the property G
purchased by VP was contiguous to the land belonging to him. Durir.g the
pendency of the preemption suit, VP sold the suit property to one SK who, in
turn, sold the same to the tenant who was already in possession of the suit
property. The trial court decreed the suit in 1984.

723 H
724 SUPREME COURT REPORTS [2004] SUPP. I S.C.R.

A The appellant purchased the suit property from the said tenant in the
year 1998. Respondent No. I/plaintiff filed a petition for execution of the said
decree in the year 2000. The trial court issued a warrant of possession. The
appellant pleaded that he had no knowledge about the pendency of the
preemption proceedings or the order passed thereon:The appellant filed an
B application raising various grounds under Order 21 Rules 58, 99 and 101 of
the Code of Civil Procedure, 1908 and prayed for stay of the operation of the
warrant of possession. The appellant also filed a ~eparate suit for declaration
and perpetual injunction challenging the decree obtained by respondent No.
1. The suit filed by the appellant was still pending.

C The trial court rejected the appellant's application. The appellate court
granted interim order. The District Judge allowed the appeal and stayed the
ex parte decree till the final decision of the suit. The appellant and respondent
No. 1 filed a revision petition before the High Court. The High Court
dismissed the appellant's revision petition. Hence the appeal.

D Allowing the appeal, the Court

HELD: 1.1. Section 15(6) of the J & K Rights of Prior Purchase A~t,
1936 was amended in the year 1973 and the provision relating to the owners
of the property contiguous to the property sold was deleted. (731-D; 732-C-DJ

E 1.2. The suit had been filed by respondent No. 1 in 1978 claiming pre-
emption under a law that existed prior to the amendment in 1973. After 1973,
there is no provision in the Act for an owner of a property contiguous to the
property sold to seek preemption. Thus the plaintiff/respondent No. 1 asked
for grant of a decree under clause 'sixthly' of the un-amended Section 15 (as
existed prior to 1973). However, the decree that was passed, was on tbe basis
F of clause 'fifthly' of Section 15. [732-D-EJ

1.3. Thus, though respondent No. 1 had sought pre-emption on a non-
existent provis.ion o,f law, the Court granted such pre-emption decree on
another ground which had not been argued and thus the said decree was the
G subject~matter of challenge in the two suits. (733-FJ

2.1. The appellant has also filed a suit praying for a declaration and
permanent injunction on the ground that the decree is a nullity as it had been
passed without jurisdiction on a void clause of contiguity-cum-vicinage and
that it had been passed on the grounds of willful, fraud, deception and
H misrepresentation of fact. During the pendency of the suits if the decree which
J.C. SEHGAL v. DEVI DASS [LAKSHMANAN, J.] 725

was sought to be executed 16 years after the decree of the year 1984, the A
appellant who is in possession, would be dispossessed from the property
pending disposal of the suits filed by the appellant [735-F-H; 736-A) ·

2.2. It is directed that the execution to remain in abeyance pending
disposal of the two suits, one filed by RK, the vendor of the appellant and the
other filed by the appellant and in the meanwhile the appellant would not be ~
dispossessed. This is especially in view of the fact that respondent No. 1 is
seeking to enforce the right of preemption, which is a weak right [736-A-B]

Bhau Ram v. B.Baijnath Singh, [1962) Supp. 3 SCR 724, relied on.

CIVIL APPELLATE JURJSDICTION: Civil Appeal Nos. 2713-2714 of
c
2003.

From the Judgment and Order dated IO.I 0.2002 of the J & K High Court
in CR No. 231/01 and CR No. 4 of2002
D
Ranjit Kumar, B.S. Jain, Ajay Veer Singh, Ms. Charuwali Khanna, Ms.
Nilofar Quereshi and Dr. (Mrs.) Vipin Gupta for the Appellants.

Gopal Jain and Amit Dhingra for the Respondents.

The Judgment of the Court was delivered by E

DR. AR. LAKSHMANAN, J. Leave granted.

These two appeals arise out ofS.L.P. (C) Nos. 21469-21470 of2002 and
filed against the judgment and final order dated l 0.10.2002 passed by the High
Court of Jammu and Kashmir at Jammu in C.R. No. 231 of2001 and C.R. No. F·
4 of2002, whereby the High Court dismissed the revision petition bearing C.R.
No. 231 of2001 of the appellant herein - J.C. Sehgal and allowed the revision
petition bearing C.R. No. 4 of 2002 filed by respondent No. 1 - Devi Dass.

The short background facts of the case are as under:
G
One Abdul Rouf Ahmed was the owner in possession of four rooms
along with land appurtenant thereto. One of the said rooms and some portion
of the !arid was given to one Raj Kumar on rent as tenant. The aforesaid
Abdul Rouf Ahmed sold the entire property to one Issar Dass. Respondent
Nos. 2 to 5 herein are the legal heirs of the aforesaid Issar Dass. The tenant H
726 SUPREME COURT REPORTS [2004] SUPP. l S.C.R.

A Raj Kumar accepted late Issar Dass as his landlord and a fresh rent note was
executed during I967. During the subsistence of the tenancy of the aforesaid
Raj Kumar, late lssar Dass divided the entire property in four separate portions.
The portion under the tenancy of aforesaid Raj Kumar was sold by late Issar
Dass to one Ved Paul Gupta through a sale deed dated 20.3.I977 which was
challenged by respondent No. I herein by way of pre-emption suit by taking
B recourse to the provisions of J & K Rights of Prior Purchase Act. The sole
ground taken in the suit was that the property purchased by aforesaid Ved
Paul was contiguous to the land belonging to the plaintiff (respondent No.
I) as the pamallas of his house were flowing towards the property sold.
However, the defendants in the suit did not appear in the case and did not
C defend the suit filed by respondent No. I herein. During the pendency of the
pre-emption suit, Ved Paul, who constructed on the suit property, sold the
same to one Shashi Kant vi de sale deed dated I 9.5. I 978. This fact was within
the knowledge of the plaintiff/respondent No. I herein. The aforesaid Shashi
Kant, in turn, sold the suit property to Raj Kumar who was already. in
possession of the suit property as tenant and continued to remain as tenant
D till the property was purchased by him. Raj Kumar purchased the suit property
vi de sale deed dated I. 7. I 981. The trial Court, on the basis of the evidence,
passed a judgment on 13.12.1984 decreeing the suit, the copy of which has
been flied as Annexure-P/I. On I 7. l. I 998, the appellant herein purchased the
suit property from the aforesaid Raj Kumar through a sale deed for valuable
E consideration. According to the appellant, he had no knowledge about the
pendency of the pre-emption proceedings or the order passed thereon. On
20.8.2000, respondent No. I herein filed a petition for execution before the trial
Court. The trial Court vide its order dated 28.8.2000 issued a warrant of
possession. On coming to know of the execution proceedings, the appellant
herein filed an application raising various grounds under Order XXI Rules 58,
F 99 and IOI of C.P.C. and prayed for stay of the operation of warrant of
possession. The appellant further brought to the notice of the executing
Court that he has already challenged the decree in a separate suit and the
same is pending for consideration. On I9.l2.2000, the appellant filed a separate
suit for declaration and perpetual injunction challenging the decree obtained
G by respondent No. I herein. The trial Court by its order dated I 9. I 2.2000
granted the temporary injunction and stayed the execution proceedings. Later
the trial Court by its order dated 1.3. I I .200 I vacated the interim order granted
on 19. I2.2000. The trial Judge, bya separate order dated I3. I I.2001, rejected
the application of the appellant filed under Order XXI Rules 58, 99, IOI read
. with Sections 94 and I 51 of the C.P.C. (Annexure-P/3). The appellant preferred
H an appeal before the Additional District Judge challenging the orders of the
J.C. SEHGAL v. DEVI DASS [LAKSHMANAN, J.] 727
sub-Judge, who vacated the temporary injunction. The Ilnd Additional District A
Judge by his order dated 4.12.2001, granted interim order after hearing the
appellant herein. The appellant preferred a revision petition before the High
Court challenging the judgment of the sub-Judge dated 13.11.2001 against the
interim orders of the Ilnd Additional District Judge in the application filed
under Order XXI, Rules 58, 99 and IOI read with Sections 94 and 151 ofC.P.C.
Respondent No. l herein also filed a revision petition before the High Court B,
against the interim orders of the Ilnd Additional District Judge. The District
Judge allowed the appeal and stayed the execution of the ex parte decree till
the final decision of the suit. The High Court took both the petitions for
hearing and by its judgment dated I 0.10.2002 rejected the civil revision petition
bearing No. C.R. 231/200 l holding that there is no merit in the revision petition c
and allowed the revision petition filed by respondent No. I herein bearing
C.R. No. 4/2002 in view of the dismissal of the revision petition filed by the
appellant herein. According to the appellant, the High Court failed to consider
that the revision petition bearing No. C.R. 4/2002 filed by respondent No. l
herein had become infructuous as the appellate Court disposed of the appeal
on 4. I0.2002 itself and, therefore, nothing survives in it. Further, respondent D
No. l did not challenge the order dated 4.10.2002 passed by the Additional
District Judge. It was further submitted that the High -Court did not consider
the various issues raised by the appellant in his revision petition. Being
aggrieved by the order passed in C.R. No. 23 l/200l and C.R. No. 4/2002, the
above appeals have been filed.
E
We heard Mr. Ranjit Kumar, learned senior counsel appearing for the
appellant and Mr. Gopal Jain, learned counsel, appearing for the respondents.

Our attention was drawn to the relevant pleadings filed in this case and
the judgment and orders passed by the High Court and the lower Courts and F
also to the annexures.

Mr. Ranjit Kumar, learned senior counsel, appearing for the appellant,
submitted that the High Court was not justified in not considering the various
pleas raised by the appellant as available to him under Order XXI, Rules 58,
99 and IO l of C.P.C. According to him, the Courts below are not justified in G
rejecting the petitions on the ground that the purchase of the suit property
by the appellant was hit by principles of /is pendens and whether the /is
pendens is applicable to the facts of the present case. It was further submitted
that the High Court was not justified in entertaining C.R. No. 4/2002 filed by
respondent No. l herein challenging the interim order which has become
infructuous as the appellate Court disposed of the appeal itself by its judgment H
728 SUPREME COURT REPORTS [2004] SUPP. l S.C.R.

A dated 4.10.2002. He further submitted that the Courts below have committed
error in executing decree against the appellant who was not a party to decree
and the present decree was passed on one-sided evidence only and that the
Courts below are not justified in not considering the fact that the decree
holder -voluntarily admitted and accepted the appellant as tenant qua the
property in question.
B
Per contra, Mr. Gopal Jain, learned counsel, appearing for the respondent,
submitted that the water parnallas were fitted to th~ property long before the
sale of the property to the appellant. The water of parnallas passes through
the property of the appellant and that the order of the sub-Judge in the pre-
C emption suit filed by respondent No. 1, clearly takes into account the fact that
the property of respondent No. 1 is in the vicinity of the house of the
appellant and that the parnallas fitted in the roof pass through the. said
property, therefore, it is proved that the property of respondent No. 1 is the
dominant property and hence respondent No. 1 has a right of prior purchase
under Section 15(5) of the Prior Purchase Act. It was held that no notice of
D the sale of the property was given to respondent No. 1 even when he was
ready and willing to offer the price for the property. According to learned
counsel, appearing for the respondents, the High Court has rightly held that
the appellant cannot be said to have improved his right by purchasing the
property from Raj Kumar and the High Court was further correct in holding
E that the improvement in status for the purpose of Section 15(5) of the Prior
Purchase Act can only be applicable to Raj Kumar and the appellant having
purchased the property from Raj Kumar cannot, and would not, fall under
Section 15(5) of the Prior Purchase Act. Argued further, learned counsel
submitted that the High Court was right in holding that once the order in
execution petition of the sub-Judge dated 13.11.2001 was upheld, it would not
F be apt to give any further life to the interim order dated 13.11.2001 passed by
the Ilnd Additional District Judge, Jammu. He further submitted that the
decree dated 13.12.1984 was not challenged and, therefore, attained finality
with the efflux of time and any argument regarding raising of permanent
structure etc. by the appellant cannot be sustained at the belated stage.

G Mr. Ranjit Kumar, learned senior counsel, drew our attention to the
following important events from the rejoinder affidavit:

(a) The respondent filed suit against Ved Paul on 19.5.1978.
(b) During the pendency of the suit, the suit property sold to one
H Shashi Kant. The aforesaid suit property was again came to bt:
J.C. SEHGAL v. DEVI DASS [LAKSHMANAN, J.] 729
sold to one Raj Kumar on I. 7.1981. However, none of these two A
subsequent purchasers were made parties to the suit. The
defendant, Ved Paul having sold the suit property, did not
prosecute the suit.

(c} The suit of the respondent came to be allowed on 13.12.1984 ex
parte. B
(d) Though the suit was decided on 13.12.1984, the respondent decree
holder did not seek execution of the same for a considerable time
(till 28.8.2000).
(e) In the meantime, the purchaser of the aforesaid suit property, Raj
Kumar, sold the suit property to the appellant herein on 17. l .1998. c
(f) The respondent initiated execution proceedings only on 28.8.2000
seeking execution of the order dated 13.12.1984.
(g) The appellant having come to know of the decree dated 13.12.1984
and also the execution proceedings initiated by respondent No. l,
the appellant rriade application before the executing Court objecting
D
to the execution. As the executing Court cannot go behind the
decree, the application was rejected.
(h) The appellant, in these circumstances, filed a suit for declaration
and perpetual injunction challenging the decree dated 13.12.1984.
The trial Judge granted interim stay. However on 13.12.1984, the
E
,
'>

trial Court vacated the stay.
(i) The appellant preferred an appeal against the order of vacating
stay. The Ilnd Additional Judge granted interim stay on 4.12.2001.

G) The aforesaid interim stay was challenged by the respondent F
before the High Court. During the pendency of the aforesaid
proceedings, the Additional District Judge passed an order dated
· 4.10.2002 and made the interim stay absolute.
(k) The High Court, vide its impugned judgment, set aside the interim
order dated 4. I 2.200 I and also set aside the order dated 4. I 0.2002, 0'
though the order dated 4. I 0.2002 was not impugned before it.
(I) It is also a fact that the decree dated I 3. 12. I 984 was ex parte and
the trial Court had no opportunity of considering the other side
of story. The trial Court allowed the suit ex parte in the absence
of objections. H
730 SUPREME COURT REPORTS '[2004) SUPP. 1 S.C.R.

A In reply to the preliminary submissions made by the counsel for the
respondents, learned senior counsel, appearing for the appellant, submitted
that the decree dated 13 .12.1984 is ex parte decree and, therefore, the sub-
Judge relied upon the contentions of the plaintiff before him and that the
appellant herein has already filed a suit giving the complete facts of the case.
It was further submitted that respondent No. 1 made false allegation about
B the existence of his house and parnallas on the date of institution of the suit
for pre-emption. In fact, no house was in existence at the time of the suit
during 1978 nor any house is existing even today on the portion of respondent
No. 1. Hence, it was submitted that the ground of pre-emption by respondent
No. 1 had no leg to stand in law and, therefore, respondent No. 1 lost his right
C of prior purchase with respect to the suit property. It was further submitted
that the appellant was not a party to the decree dated 13.12.1984 and defendant
No. 1, who had already sold the suit property during the pendency of the suit
has not prosecuted the suit. Respondent No. 1, who had the knowledge of
the subsequent sales, had never taken steps to implead the subsequent
purchasers. Hence it was submitted that the appellant is entitled to file a suit
D and challenge the decree and can also take all the pleas available to him.
We have briefly set out the facts of this case and also the contentions
raised by the counsel appearing on either side with reference to pleadings and
documents and also with reference to the proceedings before the Courts
E below. We shall now consider the respective submissions.

As already noticed, two civil revision petitions were filed before the
High Court. One was filed by the appellant herein, being C.R. No. 231 of 200 I,
against the order of the sub-Court dated 13.11.2001 whereby the trial Court
rejected the application of the appellant filed under Order XXI, Rules 53, 99
F and 101 of the C.P.C., challenging the execution proceedings pursuant to the
decree dated 13.12.1984, which decree was put into execution only in the year
2000 though the decree was of 1984. The second revision petition being C.R.
No. 4/2002, was filed by respondent No. 1 herein challenging the interim order
of the Ilnd Additional District Judge, Jammu dated 4.12.2001 passed in appeal
preferred by the appellant under Order XXXXIII, Rule l(r) of the C.P.C. These
G appeals are against the order of the learned sub-Judge, Jammu, who had
dismissed the prayer for injunction under Order XXXIX, Rules l and 2 filed
by the appellant herein in his suit, the suit having challenged the decree dated
13.12.1984. The Additional District Judge, in appeal, passed an interim order
staying the execution proceedings. The High Court vide its impugned judgment
H dismissed the civil revision preferred by the appellant herein and allowed the
J.C. SEHGAL v. DEVI DASS [LAKSHMANAN, J.] 731

civil revision preferred by respondent No. 1 herein. The decree that was A
challenged by the appellant in a suit, was passed on 13.12.1984 in a suit for
pre-emption filed by respondent No. 1 herein under the provisions of the J
& K Right of Prior Purchase Act, 1936 (In short, "the Act") wherein the plaint
averments were:

"In the plaint, it has been averred by the plaintiff that he owns B
a house situated at Mohalla Mastgarh, Jammu, whereas defendant
Nos. l and 2 owned a house and a vacant piece of land in the same
locality which is contiguous to the house of the plaintiff, that all the
pamallas of his house flow towards the land of defendant No. 2 since
the construction of his house and his house is also contiguous' to ~
1hehouse of the defendant and as such is vested with the right ofpre-
emption in the house of defendant No. 2." (Emphasis supplied)

The suit was filed on 17.3 .1978 wherein averment was to the aforesaid
effect. The provision of law as existing under the Act vide Section 15 thereof,
as amended in 1973, reads as under: Ji)

"15 - Persons in whom right of prior purchase vests in Urban
Immovable Property - the right of prior purchase in respect of urban
immovable property shall vest.

Firstly - in the co-sharers of such property, if any;
E
Secondly - where the sale is of the site of the building or
structure, in the owners of such building or structure;

Thirdly - where the sale is of property having a stair case
common to other properties, in the owners, of such properties;
F
Fourthly - where the sale is of property having a common outer
entrance with other properties, in the owners of such properties;

Fifthly - where the sale is of a servient property in the owners of
the dominant property and vice-versa;

Sixthly - in the tenant occupant thereof."
G

However, earlier, prior to 1973 amendment, stood as under:

"15 - Persons in whom right of prior purchase vests in Urban
Immovable Property. The right of prior purchase in respect of Urban
Immovable Property shall vest - H
732 SUPREME COURT REPORTS (2004] SUPP. l S.C.R.

A Firstly - in the co-sharers of such property, if any;

Secondly - where the sale is of the site of the building or
structure, in the owners of such building or structure;

Thirdly - where the sale is of property having a stair case
B co~mon to other properties, in the owners, of such properties;

Fourthly - where the sale is of property having a common outer
entrance with other properties, in the owners of such properties;

Fifthly - where the sale is of a servient property in the owners
of the dominant property and vice versa;
c
Sixthly - in the owners. of property contiguous to the property
sold."

Thus, what appears to have been amended in 1973, is clause 'sixthly'
only. It would be seen that the suit had been filed in 1978 claiming pre-
D emption under a law that existed prior to the amendment in 1973. After 1973,
there is no provision, as aforesaid, in the Act for an owner of a property
contiguous to the property sold to seek pre-emption. Thus, the plaintiff asked
for grant ofa decree under clause 'sixthly' of the un-amended Section 15 (as
existed prior to 1973). However, the decree that was passed, was on the basis
E of clause 'fifthly' of Section 15 as would be found from paragraph of the
judgment of the sub-Judge, Jammu, which reads as under:

"From the statement of the plaintiff, which is supported by as
many as four witnesses produced by him, namely, PW 1 Amar Nath,
PW 2 Pradeep Kumar, PW 3 Mast Ram and PW 4 Preetam Singh,
F during the trial, who in one voice have stated that the suit property
is quite in the vicinity of the plaintiffs house and the water of the
pamalla fitted in the roof of the plaintiffs house passes through the
suit property, it stands proved that the plaintiffs house is the dominant
property to the suit property and as such the plaintiff has right of
prior purchase under Section 15(5) of Prior Purchase Act."
G
Thus, though the qecree was sought on a non-existent prqvision of law,
the Court granted it on a provision which was not ·the case of the plaintiff
- respondent No. I.

This decree was the subject matter of the challenge in two suits, one
H was filed by Raj Kumar, the vendor of the appellant herein, seeking a
J.C. SEHGAL v. DEVI DASS (LAKSHMANAN, J.] 733

declaration that the decree passed by the Court of sub-Judge, Jammu, on A
13.12.1984 in Civil Suit No. 177/78 be declared null and void and unexecutable.
This suit is still pending.

Subsequently, the appellant herein also filed a suit being - File No. 48
- Civil Suit titled J.C. Sehgal v. D.D. Abrol and Ors., praying for a suit for
declaration and permanent injunction on the ground that the decree is a B
nullity as it had been passed without jurisdiction on a void clause of contiguity-
cum-vicinage and that it had been passed on the grounds of wilful fraud,
deception and misrepresentation of facts. It is important to state here that the
learned Sub-Judge, Jammu, in his order dated 13.11.2001 on the application
tiled under Order XXI, Rule 58 has noted at pages 51-52 in para 7 as under: C
"It is no doubt true that ground of prior purchase in respect of
vicinage has been repealed but the question is whether the decree
dated 13 .12 .l 984 passed by this Court was on the ground of vicinage
or on the ground mentioned in Section 15(5) of the Prior Purchase Act.
A bare perusal of the judgment dated 13 .8.1984 reveals that judgment D
· and decree has been passed in terms of Section 15(5) of Right of Prior
Purchase Act on the ground that plaintiffs house is the dominant
property to the suit property and the water of the parnallas of the
house of the decree holder passes through the suit property. The
contention of the learned counsel for the applicant that the decree has
been passed on the ground of vicinage is without merit. Though, it E
has been mentioned in the suit as well as in judgment that suit
property is contiguous to the house of plaintiff, but by no stretch of
imagination, it can be said that decree has been passed on the ground
of vicinage." [Emphasis supplied]

Thus, it is seen that though respondent No. 1 had sought pre-emption F
on a non-existent provision of law, as seen earlier, the Court granted such pre-
emption decree on another ground which had not been argued and thus the
said decree was the subject matter of challenge in the two suits, as aforesaid.

~ This apart, that ifthe decree which was sought to be executed, 16 years G
after the d_ecree of the year 1984 is executed in 2000, the appellant, who is in
possession, would be dispossessed from the property pending disposal of
the suif filed by the appellant, especially when such decree is sought to be
executed, is a nullity on account of the fact submitted in the legal submissions
made.
H
734 SUPREME COURT REPORTS [2004] SUPP. l S.C.R.

A Learned counsel for the respondent, in fact, has fairly conceded at the
time of arguments by the respondent's counsel that the civil revision preferred
by the. respondent herein was against the interim order passed by the Illrd
Additional District Judge, Jammu, dated 04.12.2001 granting stay of execution f
\
proceedings pending the suit of the appellant herein. y

B In that Civil revision, the High Court did not pass any stay order. The
Illrd Additional District Judge went on to pass a final order in that appeal
under Order XXXXIII, Rule l(r) on 04.10.2002 making the stay absolute pending
the suit of the appellant herein. This order dated 04. l 0.2002 was never
challenged before the High Court. These facts would be apparent from the
judgment of the High Court itself. It was contended before the High Court
c as to how could the order dated 04. l 0.2002 be set aside when the same was
not the subject-matter of challenge before the High Court. The High Court,
however, held as under:

"However, without commenting on this controversy so far as the
D above aspect of the matter is concerned, to say that once a subordinate
Court whose interim order is subject matter of challenge, decides a
matter finally and that should deprive this Court from pronouncing
upon the correctness of proceedings, is an argument which cannot be
sustained. By this process, a ~ubordinate Court cannot be given a
handle to put the superior Court in a position which disenables it from
E pronouncement upon the validity or correctness of an order."

It was submitted that the above finding is an erroneous finding of the
High Court as. fairly submitted by the counsel for the respondent herein,
inasmuch as when the High Court did not stay the proceedings before the
Illrd Additional District Judge and the order passed by the Third Additional
F District Judge was not challenged or appealed against and only the interim
order was appealed against. The High Court ought not to have set aside the
order dated 04.10.2002, the final order passed by the Third.Additional District
Judge as has been done by the High Court in the operative portion of its
judgment.
G :-
In the instant case, respc:mdent No. 1, is seeking to enforce th.e right of ~

pre-emption which this court had held in several decisions to be a very weak
right. In Bhau Ram v. B. Baijnath Singh, [1962] Supp. 3 SCR 724, this Court
held at pages 740-741 as under:

H "The question as to the constitutionality of a law of pre-emption
J.C. SEHGAL v. DEVI DASS [LAKSHMANAN, J.] 735
in favour of a co-sharer has been considered by a number of High Courts and A
the constitutionality has been uniformly upheld. We have no doubt that a Jaw
giving such a right imposes a reasonable restriction which is in the interest
of the general public. If an outsider is introduced, is a co-sharer in a property,
it will make common management extremely difficult and destroy the benefits
of ownership in common. The result of the Jaw of pre-emption in favour of
a co-sharer is that if sales take place, the property may eventually come into B
the hands of one co-sharer as full owner and that would naturally be a great
advantage the advantage is all the greater in the case of a residential house
and s.16 is concerned with urban property; for the introduction of an outsider
in a residential house would lead to all kinds of complications. The advantages
arising from such a Jaw of pre-emption are clear and in our opinion outweigh C
the disadvantages which the vendor may suffer on account of his inabil~ty
to sell the property to whomsoever he pleases. The vendee also cannot 'be
said to suffer much by such a Jaw because he is merely deprived of the right
of owning an undivided share of the property. On the whole, it seems to us
that a right of pre-emption based on co-sharership is a reasonable restriction
on the right to acquire, hold and dispose of property and is in the interests D
of the general public~"

We are of the opinion that the Courts below are not justified in executing
the decree against the appellant who was not a party to the decree. Likewise,
the High Court is not justified in entertaining C.R. No. 4 of 2002 which E
challenges the interim order which has become infructuous as the appellate
Court disposed of the appeal itself by its judgment dated 04. l 0.2002. The High
Court while interfering with the interim orders dated 04.12.200 I, has no right
to set aside the final judgment of the appellate Court dated 04. l 0.2002 which
has not been challenged before the High Court.
F
As already noticed, one suit was filed by Raj Kumar, the vendor of the
appellant herein seeking a declaration that the decree passed by the Sub-
Judge, Jammu, on 13.12.1984 in Civil Suit No. I77n8 be declared null and void
and unexecutable. The appellant herein has also filed a suit being File No. 48
- Civil Suit praying for a suit for declaration and permanent injunction on
the ground that the decree is a nullity as it had been passed without jurisdiction G
on a void clause of contiguity-cum-vicinage and that it had been passed on
the grounds of wilful fraud, deception and misrepresentation of facts. During
the pendency of the suits if the decree which was sought to be executed 16
years after the decree of the year l 984, the appellant who is in possession,
would be dispossessed from the property pending disposal of the suits fiJed H
736 SUPREME COURT REPORTS [2004] SUPP. I S.C.R.

A by the appellant.

In the facts and circumstances of the case, we direct the execution to
remain in abeyance pending disposal of the two suits one filed by Raj Kumar,
the vendor of the appellant herein and the other filed by the appellant herein
being File No. 48 - Civil Suit Titled J.C. Sehg&N. D.D. Abrol and Ors. and
B in the meanwhile the appeilarit''.Wo~ld not be dispossessed. This is especially ·
in view of the fact that the respondent No. 1 is see~ing to enforce the righ~
of pre-emption which Courts have held in several decisions to be a weak right.

In the result, the appeals are allowed and the common judgment and
final order dated 10.10.2002 passed by the High Court of Jammu & Kashmir
C in C.R. No. 231 of 2001 and C.R. No. 4 of 2002 is set aside. No costs.

v.s.s. Appeals allowed.