M.K. Hanjura ORDER
M.K. Hanjura, J.
1. These three appeals raise akin and analogues issues and have, therefore, been clubbed together for determination and decision.
2. This appeal bearing No. CIMA 616/2014 filed under Order 43 Rule 1 Clause (U) against the order of the learned Principal District Judge, Kishtwar, passed in File No. 11 titled Krishan Lal v. Zakir Hussain and Others, where under the learned Principal District Judge has accepted the appeal of the respondent and remanded the case to the learned Sub Judge, Kishtwar, for accord of fresh consideration to it in light of issue No. 3 framed in the suit.
3. The background facts of the case are that the respondent filed a Civil Suit for possession by enforcement of the right of prior purchase against the appellants herein. The suit was contested by the appellants and it ultimately came to be dismissed by the learned trial Court, i.e., Sub Judge, Kishtwar, vide his judgment dated 26.09.2013. The respondent assailed the judgment of the learned Sub Judge before the Court of the learned Principal District Judge, Kishtwar, and the learned District Judge vide an order dated 18.12.2014 (impugned herein), remanded the matter to the learned Sub Judge.
4. Aggrieved of the order of the remand, the appellants have challenged its vires on the grounds, inter alia, that the same is contrary to the settled law of the land. The Principal District Judge has held that the communication of the intended price at which the sale was offered to the respondents has not been communicated to the respondents herein, and therefore, it goes to the very root of the stand of the appellant No. 7, that he had offered to sell the property initially to the plaintiff, who had shown his reluctance and had practically denied to purchase the same. Section 18 of the Right of Prior Purchase Act (herein after referred as "the Act"), does not defeat the right of prior purchase under the doctrine of estoppel and the other relevant principles relating to estoppel, as are governed under the Evidence Act. In fact it is not necessary in law, that the procedure as envisaged under Chapter IV of the right of Prior Purchase Act, should be strictly followed for pleading waiver of the right of the prior purchase, and reference by the learned Principal District Judge to the absence of evidence with respect to non-communication of the price at which it was offered by appellant No. 7 to the respondent having not been proved, the same would defeat the plea of appellants with respect to waiver/estoppel against respondent, is wholly misplaced, illegal and contrary to the law on the subject. It is also stated that the first appellate Court has failed to notice that the plaintiff/respondent himself has sufficiently proved that he had the knowledge of the sale. The plaintiff/respondent has himself pleaded in his plaint that notice had not been issued to him by the appellant No. 7, as per the procedure and, as such, he had the right of prior purchase. The respondent has not pleaded, that he was not offered the sale property by the appellant No. 5 in the first instance and instead has taken a technical plea, which could be only a brain child of the drafter of the plaint, where he has referred to the absence of the notice under the procedure relating to Section 18 of the Act. The appellants filed their written statement, in which a plea had been taken denying the allegation of the plaintiff. It has been pleaded clearly, cleanly and unambiguously, that the respondent had been offered to purchase the land in the first instance where after the plaintiff/respondent had, after he being asked to purchase the land refused to do so. It had further been pleaded that it was the plaintiff who had in fact asked and persuaded the appellant Nos. 1 to 6 to purchase the land. To offset any assertion of the appellants, which was very specific to the question of offer, there had been no rejoinder/re-application filed by the plaintiff. This is how the appellants had opened their head and heart to this Court in the first instance. The learned Appellate Court thus neither on facts nor by reference to any law should have off set/overset a factual finding recorded by the trial Court, who had passed a reasoned judgment with respect to issue No. 3 and had held, that the plaintiff had been offered by the appellant No. 7 to purchase the subject matter of the suit in the first instance and there was every reason both by reference to character and quality of the evidence recorded in the trial, as also of law to give such a finding. The learned 1st Appellate Court, thus has by overlooking the factual finding as also by ignoring the position of law, which has been discussed by the trial Court, ordered remand of the case, which is contrary to the law, and as such, the order impugned was never warranted to be issued in the facts and circumstances of the case.
5. Heard and considered.
6. In order to arrive at a definite finding vis-à-vis the pleadings as projected in the memo of appeal, it will be appropriate to reproduce the relevant excerpts of the order of the learned Sessions Judge herein below and these are as under:
"5. Be that as it may, the fact that plaintiff and defendant No. 3 are co-sharer qua the suit land, is not denied. The suit land was demised by defendant No. 3 in favour of defendant No. 1 to 6 by a registered sale deed dated 21.04.2007 and this suit was filed on 11.7.2007 which is obviously within limit prescribed by law. Learned Sub Judge has based his findings on the Judgment of Hon'ble Apex Court (Indiri Bai v. Nand Kishore, MANU/SC/0250/1991 : AIR 1991 SC 1005) and Smt. Kanta Devi's case (1992 KLJ) and came up with findings of law only that there being ample evidence on record regarding oral notice/intimation by defendant No. 7 telling plaintiff to purchase land if he so desired but it was only on his reluctance that he sold the suit land to defendant Nos. 1 to 6 for a sum of Rs. 1,00,000/- by a registered sale deed (supra). There is no denial of fact that right of purchase is a weak right, nonetheless it is statutory right vested in different categories of persons categorized under the ROPPA with respect to different species of land/immovable property e.g., agricultural land, urban immovable property, shamelat, village abadi etc. In order to avoid multiplicity of litigation legislature in its wisdom has laid down provision of a written notice to be served by the owner/co-sharer to any persons having preferential right in the land/immovable property offering him the price on which he proposes to sell land/property. Section 18 of ROPPA prescribes procedure for service of notice of proposal of sale of immovable property and Section 19 of the Act envisages procedure to be followed by the pre-emptor on receipt of notice under Section 18 of the Act.
6. Agreeing to the law laid by judgments relied on by learned advocate for the defendants and consequently by learned Sub Judge in his impugned judgment that even oral intimation of the vendor's intention of selling land and asking the per-emptor to exercise his right and purchase the same if he so desires, is sufficient compliance of section 18 and subsequent filing of suit when sale deed is registered in favour of stranger vendees, attracts provision of Section 115 Evidence Act and the plaintiff is estopped in the matter. True, law laid down by the Hon'ble Apex Court of the country is binding in all subordinate Courts and yet a Court of facts cannot abstain from its duty to come to a definite finding on oral evidence. A simple question would arise thus; Should the Courts accept the ipse dixit of the defendant/vendor even if there is a deviation from the statute and accept mouth? Answer to this simple proposition obviously is "No". In the first instance I must say that onus of proof for such defence must be on the defendant/vendor, who displaces the clear provision of law, and not on the plaintiff (Reference may be made to "Mattoo Devi v. Damodar Lal" MANU/SC/0371/2001 : AIR 2001 SC 2611). Since in this case both the parties have lead evidence, the question of onus of proof loses importance.
7. Lets switch over to available evidence for reappraisal in order to return findings. Defendant No. 7 Naib Chand has stated that he has asked plaintiff in presence of his son Jatinder Ram Nath and Chuni Lal and he refused to purchase suit land saying his land is adjoining the suit land as such he does not need it. DW Jatinder has stated that his father had asked plaintiff for purchasing suit land in his presence and that of Ram Nath, Mohd. Siknadar Kichloo and Mushtaq Ahmad, but he had refused to purchase land. DW Mohd. Sikandar Kichloo has stated that defendant No. 3 had offered the plaintiff to purchase land in his presence when his son Jatinder was also present. DW Liaqat Ali has stated that Naib Chand had offered plaintiff as well as him (PW) to purchase land but both of them refused.
8. Admittedly there is no written notice to plaintiff, co-sharer, by vendor offering to purchase his land and yet the above statements of DWs are not only self-contradictory but also do not qualify the requirement of section 18 of the Act notwithstanding oral notice etc. Defendant Naid Chand has stated that he had asked plaintiff to purchase his share in the land in presence of Ram Nath and Chuni Lal. Both of them have not been examined and no explanation given why they have been withheld from the Court. DW Jatinder who is the son of defendant No. 3 had omitted the presence of Chuni Lal when his father allegedly asked plaintiff to purchase suit land and has introduced Mohd. Sikandar Kichloo and Mushtaq Ahmad in whose presence, according to him Naib Chand, his father, had proposed the plaintiff to purchase land, although defendant No. 7 not deposed that he had made offer in presence of these two persons. Instead of Ram Nath & Chuni Lal defendant No. 7 examined Liaqat Ali whose presence has not been supported by any witnesses including Naib Chand. So the issue of notice may be oral notice, is left wide open for defendants to examine any person as a witness they like to depose a simple stereotype sentence in the witness box that "Naib Chand asked plaintiff to purchase lad and he refused. "Is this evidence trustworthy is it sufficient compliance of section 18, may be in oral form? The answer certainly is "No". Does this evidence establish 'the service of notice' as contemplated in terms of Section 18? The bald assertions of the defendant No. 3 as well as his witnesses that defendant No. 7 had offered plaintiff to purchase land without any witness, including Naib Chand and son Jatinder, deposing before the court as to what price had he offered to sell land to plaintiff. No DW has stated at what price the land was offered for sale to plaintiff by Naib Chand defendant No. 7. Mere asking by the seller co-sharer/plaintiff to another co-sharer, even if believed, is not by itself proof of the notice as contemplated under Section 18 in any form. L
Notice to persons having right of prior purchase
When any person proposes to sell any agricultural land or village immovable property or urban immovable property, or to foreclose the right to redeem any village immovable property, or urban immovable property, in respect of which any person have a right of prior purchase, he may give notice to all such persons of the price at which he proposes to sell such land or property, or of the amount due in respect of the mortgage, the case as may be.
Such notice shall be given through any Court within the local limits of whose jurisdiction such land or property is situate and shall be deemed sufficiently given if it is served in accordance with the provisions of Order V of the Code of Civil Procedure.
9 We bow before the law laid down by Hon'ble Apex Court of the country in Indiri Bai's case (1991 SC Supra) and followed by our own Hon'ble High Court in Smt. Kanta Devi's case (1992 KLJ 405) laying down that notwithstanding the requirement of service of a written notice by seller, even verbally proposing a co-sharer to purchase immovable property, shall be deemed to be sufficient compliance of section 18, which provision is in pari materia with section 18 of Rajatha Preemption Act 1066. Hon'ble Supreme Court has laid down as above said while interpreting the latter. S. 8 of Rajasthan Preemption Act 1966 is as under:
"8. Notice to pre-emptors. - (1)
b. When any person proposes to sell, or to foreclose the right to redeem, any immovable property. In respect of which any persons have a right of pre-emption, he shall give notice to all such persons as to the price at which he is proposing so to sell or as to the amount due in respect of the mortgage proposed to be foreclosed, as the case may be.
c. Such notice shall be given through the civil court, within the local limits of whose jurisdiction the property concerned is situated shall clearly describe such property, shall state the name and other particulars of the purchaser or the mortgagee and shall be served in the manner prescribed for service of summons in civil suits
10. Now therefore, it is amply clear that a notice contemplated under Section 18 shall be deemed to be sufficiently served even if the intention of selling immovable property by the seller is verbally conveyed to any person having right of prior purchase in the estate as per categories mentioned under the relevant sections of J&K ROPPA. In that event, failure of the latter to apt for purchasing immovable property would mean that he has waived his right and the interpretation of Section 18 of ROPPA by Hon'ble J&K High Court given in Judgment reported as Abdul Aziz Pattoo v. Mst. Khatji (MANU/JK/0011/1991 : AIR 1991 J&K 1023) stand overruled.
11. A bare look at the statements of defendant No. 3 Naib Chand his son Jatinder and witnesses examined on behalf of defendant have made omnibus statements that defendant No. 3 has asked plaintiff to purchase land but he refused. NO witness has stated as to at what price did defendant No. 7 propose to sell the land. In other words there is not even iota of evidence showing if any price was offered by defendant No. 3 to the plaintiff, which is an essential condition of the notice under Section 18 of the Act, no matter it is in writing or merely verbal. Moreover any offer by the seller short of offering price would be incomplete and will amount to failure on the part of seller (Defendant No. 3) of service of required notice.
12. Learned Sub Judge has totally ignored to appreciate plaintiff's witnesses statements vis-à-vis defendants. That's not the proper way of appreciating evidence and this manner is sure to cause serious prejudice to the plaintiff. As compared to DWs statements, statements of plaintiff and his witnesses show that they have stated that neither the defendant No. 7 ever asked him to purchase suit land nor did the plaintiff ever refuse to purchase. This part of evidence on file has not been meted out proper attention by learned Sub Judge and these statements cannot be thrown away in the manner in which learned Sub Judge did. Asking the plaintiff to prove a negative issue would be doing violence to the well-recognized law and is tantamount to asking him to prove the impossible (See MANU/SC/0371/2001 : AIR 2001 SC 2611).
13. In view of the above discussion this Court of firm opinion that learned Sub Judge did not appreciate the parties' evidence in proper perspective rather he adopted 'one-way traffic formula' which is absolutely not recognized by courts of law in the country, nor even acceptable to common sense. The view taken by learned Sub Judge being contrary to law and passed by ignoring evidence on record, judgment and decree dated 26.09.2013 assailed by plaintiff, is set aside. Resultantly the appeal is accepted and the case is remanded back with the direction to Sub Judge Kishtwar to hear learned advocates for parties afresh on issue No. 3 in the light of observations of law and fact made herein and decide the case on priority basis. Appeal is accordingly disposed of. Lower Court file shall be immediately sent back with a copy of this order. Advocates for the parties are directed to appear before Subordinate Judge on 29.12.2014. Appeal file to go to records after its due compilation."
7. The order of the learned Sessions Judge is lucid and clear. It does not call for any interference. It is based on the law and the logic. To understand the question as to whether the mandate of Section 18 of the Act, is or, is not, necessary and whether adherence to it is mandatory, it will be apposite and relevant to assess and evaluate the application of the law laid down in the case reported in MANU/SC/0433/2014 : 2015 (13) SCC 722 to this appeal. It provides that when a statute provides a particular thing to be done in a particular manner it must be done in that manner or not at all. In the case of B. Premanand and Others v. Mohan Kokal and Others reported in MANU/SC/0249/2011 : 2011 SCCR 392, it has been held by the Apex Court that while interpreting the provisions of the statute when a legislative intent is clear from the language, the court should give effect to it. We should read the statute as it is without distorting the language. In the case of "Raghunath Rai Bareja and Another v. Punjab National Bank and Others" reported in MANU/SC/5456/2006 : 2007 SCCR 6, it has been held that where the words of the statute are absolutely clear and unambiguous, recourse cannot be had to the principles of interpretation other than the literal rule.
8. The aforesaid enunciations of law, crystallize that when the language of the statute is clear it has to be understood and interpreted by adherence to that mode and it cannot be departed from or tinkered with. Therefore, the trial Court had to understand the import of the application of Section 18 of the Act to the facts and circumstances of the case in line and in tune with what has been provided and postulated therein and it could not have been laid to rest. A narrow or technical interpretation cannot be given to Section 18 of the Act by doing violence to the language incorporated in it. Thus there seems to be no error in the order impugned, as a consequence of which, the appeal is dismissed and the order impugned is upheld.
9. The record of the trial Court shall be sent down with a direction to the learned Sub Judge, Kishtwar to hear the matter afresh insofar as it pertains to issue No. 3 in light of the observations made by the 1st appellate Court with utmost dispatch.
10. The appeal along with other appeals and the connected IA(s) disposed of accordingly.
© Manupatra Information Solutions Pvt. Ltd.