Appeal No 524 of 1966
Appeal by special leave from the judgment and order dated December 2 1964 of the Jammu and Kashmir High Court in Civil First Appeal No 7 of 1964
B C Misra section K Mehta and K L Mehta for the appellant
M C Setalvad and Mohan Behari Lal for respondent No 1
The Judgment of the Court was delivered by Shelat J
Respondent No 1 Mod a suit in the Court of Addi tional District Judge Jammu for possession of the house in dispute owned by the second respondent and sold by her to the appellant
The cause of action pleaded was that respondent No 1 had a right of prior purchase under section 15 fourthly of the 274 Right of Prior Purchase Act II of 1993 as her house and the house in question had a common outer entrance within the meaning of that clause
The trial court and the High Court on evidence held that the two houses had a common outer entrance and decreed the suit on respondent No 1 paying the sale price of Rs 13000 
Hence this appeal by special leave
On behalf of the appellant the vendee Mr Misra raised two questions 1 that on a proper construction of section 15 fourthly this was not a case of the two houses having a common outer entrance as that clause requires that such an entrance must be owned jointly by the owners of such two houses and 2 that section 15 fourthly is ultra vires as it offends article 191f and constitutes an Unreasonable restriction on the appellant s right to property
The evidence shows that the entire property consisting of these two together with other houses in the vicinity were owned at one time by witness Mohinder Nath and one Uttam Chand
Subsequently they sold some of them
To give to these houses access to the public road called the Secretariat Road they retained to themselves the ownership of the lane but granted a right of way thereon to the said vendees
The lane ends as a blind alley where the two houses are situate
The plan produced during the trial shows that there is first a common outer entrance through which one enters into this lane from the Secretariat Road and at a distance of about IO yards there is another such entrance marked common entrance  in the plan through which one enters into the alley and on which the doors of these and certain other houses open
During the course of the trial the trial Judge made local inspection and recorded his inspection note which was admitted by the parties as correct
The inspection note is as follows  On spot I find that there is a common outer entrance from the street to number of houses and then again about 1 0 yards from the common outer entrance there is another common outer entrance of six houses and there is a street which ends at the houses of the plaintiff and the suit house
At the end of the street the outer door of the plaintiff and the suit house abut
There is thus no room for dispute that the said passage leading to the said Secretariat Road has two common entrances one where it opens on to the said Road and the other at a distance of about 10 yards therefrom
Apart from the inspection note the parties led oral and documentary evidence on a consideration of which the trial Judge recorded the following finding  Both the parties agree with this note and they admit that there is a common outer entrance from the Municipal Street to the plaintiff s house and the suit house
The difference between the plaintiff s case and the defen 275 dant s case as made out by the counsel for the defendant is that the plaintiff s house and the defendant s house both open into the blank alley kucha sarbasta and into the same alley opens some more houses
The plaintiff has not shown that the alley was the private property of the owners of the houses which abut on that
According to the statement of Pt
Mohinder Nath that alley belongs to him and Pt
Uttam Chand
The owners of the houses which abut in that alley are entitled to right of way over it
As they are not owners of the alley so according to the counsel for defendant No 1 the plaintiff is not entitled to right of prior purchase on the basis of their having a common outer entrance 
The words used in the subclause are that the property sold and the property on the basis of which the right is exercised must have a common outer entrance
It is not essential that the street which leads from outer entrance to the houses of the plaintiff and the defendant should be owned by them
The High Court also came to a similar finding and held that once it had been shown that the owners of the four houses abutting on that alley had exclusive right of way over it it was enough to vest in them the right of pre emption
The High Court also held that it was not necessary to prove that the common outer entrance was jointly owned by the owners of the houses
It is therefore clear that the question raised by the appellant was not that there was no common outer entrance to the two houses but that on a proper construction of section 15 fourthly such a common outer entrance would not give rise to a right of prior purchase unless the owner claiming such a right and the owner of the house in question jointly own the common outer passage
The construction urged before the trial court and the High Court and rejected by both of them was once again urged before us by Mr Misra
The language of section 15fourthly is plain
The section in unambiguous language provides that the right of prior purchase    shall vest Fourthly  Where the sale is of property having a common outer entrance with other properties in the owners of such properties
The section clearly says that where the sale is of property having a common outer entrance with other properties the right of prior purchase shall vest in the owners of such properties
There is nothing in the section to warrant the construction that such a right would vest only if the common outer entrance is jointly owned by the owners of such houses
What the section requires is the existence of a common outer entrance which need not be owned by the person claiming the right of pre emption
Whether L5Sup
Cl67 5 276 there is such a common outer entrance which would attract the provisions of section 15fourthly would therefore depend upon the facts proved in each case
In the present case both the trial court as also the High Court came to the conclusion from the evidence led by the parties that there does exist a common outer entrance for both the houses
Nothing has been shown by Mr Misra from the evidence which would justify our disagreeing with that conclusion
Let us now turn to the decisions relied upon by Mr Misra
In Naba and others vs Piara Mal and another1 the High Court of Punjab held that the entrance to the alley in question was not a common entrance from the street  of the pre emptor and the vendor within the meaning of section 131fifthly of the Punjab Preemption Act 1905
The decision however turned on the facts and the situation of the alley which was said to be the common entrance to the houses in question
The High Court found that the evidence led by the plaintiff was insufficient to prove that the said alley was the private property of the owners of the houses opening on to it or that none except the owners thereof had free access to or right of way over it
Nor was it shown that the houses at one time constituted one building and were subsequently subdivided and that the privacy of those houses was ensured by the blind alley as it ordinarily would be by the existence of a common entrance
In Nanak Chand vs Tek Chand and others2 the right of pre emption was claimed on the ground that there was a step leading to a thara which formed part of the plaintiff s house and the house in question
The High Court held that the step could not be called either a staircase  or a common entrance from the street within the meaning of section 131fifthly of the Punjab Preemption Act 1905
In Asa Nand vs Mahmud3 the dispute was between two parties claiming the right of pre emption and the High Court rejected the defendant s claim on the ground that he had not even the right of way over the compound and his use of it was only permissive
In Ram Chand vs Ram Jowaya 4  the Punjab Chief Court held that a public street leading from the main road to two houses cannot be considered a common entrance from the street and that to bring a case within section 1 3 1 fifthly it would not be sufficient to prove that the street into which the house sold and the house of the person claiming pre emption opened was common to the two properties or that each had an entrance from that street
There must be an entrance from the street which is common to both properties
None of these decisions in our view can assist for each turned on its own facts which determined whether there was in fact a common entrance within the meaning of the Punjab Act
1 912 44 P R 159
2 AIR 1927 Lah
2 AIR 192 Lah
4 277 In the instant case there is the admitted evidence that the alley at the blind end of which the two houses are situate has a common entrance which opens into a passage of about 10 yards where there is again another common entrance opening on to the public road
It is also not in dispute that the entire passage is owned by the original owners of the houses opening into this passage and that at the time of the sales of some of these houses they had granted a right of way over this passage to them so that the said houses may have access from the public road
The said passage therefore is the private property of the said Mohinder Nath and Uttam Chand and the right of way over it is enjoyed only by the owners of the houses opening on to it
The appellant did not raise any dispute with regard to these facts
Indeed the only question raised by her was that in order to constitute a common outer entrance under section 15fourthly such an entrance must be owned jointly by the owner of the house in question and the owner claiming pre emption
As aforesaid both the courts negatived the suggested construction and we think that they were right for the plain words of the section do not justify such a construction
The question next is whether section 15fourthly providing for the right of prior purchase amounts to an unreasonable restriction
There can be no doubt that such a provision amounts to a restriction in the sense that a person purchasing such a property has to give way to the person claiming such a right
The nature of the right is expressed in felicitous language by Mahmood J in Govind Dayal vs Inayatullah1
The right of pre emption he observed  is simply a right of substitution entitling the pre emptor by means of a legal incident to which sale itself was subject to stand in the shoes of the vendee in respect of all the rights and obligations arising from the sale under which he derived his title
It is in effect as if in a sale deed the vendee s name were rubbed out and preemptor s name inserted in its place
This statement was approved by this Court in Bishan Singh vs Khazan Singh2 and the Court summarising the incidents of the right observed  That the right of pre emption is not a right to the thing sold but a right to the offer of a thing about to be sold
This right is called the primary or inherent right
The pre emptor has a secondary right or a remedial right to follow the thing sold
It is a right of substitution but not of re purchase ie the pre emptor takes the entire bargain and steps into the shoes of the original vendee
That being the nature of the right the next question is whether the restriction on the vendee s right of property created by section 15 fourthly can be said to be an unreasonable restriction
A similar 1 18851LR7 All775809
2  278 question in regard to a similar provision in section 16 of the Punjab Pre emption Act 1913 arose in Babu Ram vs Baijnath1
Section 16 of that Act provided for pre emption on six grounds the first third fourth and sixth grounds being in favour of co sharers owners of common staircases owners of common entrance from a street and owners of contiguous property
The Court held that the first third and fourth grounds of pre emption did not offend Articles 191f and 14 and were valid
The Court observed that the law under the first ground providing for pre emption by co sharers imposed reasonable restriction in the interest of the general public on the right under article 191f
If an outsider was introduced as a co sharer in a property it would make common management extremely difficult and destroy the benefits of ownership in common
The advantage of excluding a stranger in the case of a residential house was all the greater as it would avoid all kinds of disputes
The third ground which applied in a case where the property sold had a staircase common with other properties stood practically on the same footing as that of co sharers
Regarding properties having a common entrance from the street with other properties the Court held that that ground was similar to the first and the third grounds
At page 741 dealing with the fourth ground the Court observed that the buildings were in a common compound and perhaps were originally put up by members of one family or one group with a common private passage from the public street
In such a case the owners of the buildings would stand more or less in the Position of co sharers though actually there might be no co sharership in the house sold
Such a case would approximate to cases of a common staircase and co sharers and therefore the right of preemption in such a case was sustainable
The reasoning employed in upholding the validity of the fourth ground in section 16 of the Punjab Act would apply with equal force to the provisions of section 15fourthly before us
Consequently the contention that the impugned provision amounts to an unreasonable restriction cannot be sustained
Both the contentions raised by Mr Misra fail
The appeal is dismissed with costs
VPS Appeal dismissed
1 19623SuppSCR724


Summary:
The second respondent sold her house to the appellant
The first respondent filed a suit for possession of the house on the ground that she had a right of prior purchase under section 15 fourthly of the Right of Prior Purchase Act 1993 because her house and the house in question had a common outer entrance within the meaning of that clause The suit was decreed
In appeal to this Court it was contended that 1 On a proper construct ion of the clause such an entrance would not give rise to a right of pre emption unless the owner claiming the right and the owner of the house in question jointly owned the common outer entrance and 2 the clause as interpreted by the Courts below violated article 191f of the Constitution and was therefore ultra vires
HELD 1 The clause provides that where the We is of property having a common outer entrance with other properties the Tight of prior purchase shall vest in the owners of such properties
There is nothing in the section to warrant the construction that such a right would vest only if the common outer entrance is jointly owned by the owners of such houses
275H 2 In the case of properties having a common entrance the owners of the buildings would stand more or less in the position of co sharers and the right of pre emption is sustainable as a reasonable restriction
278E Bhau Ram vs Baijnath 1962 Supp 3 SCR 724 followed
Bishan Singh vs Khazan Singh   referred to