Case: Prem Dulari Vs. Raj Kumari

1. Respondents No. 1 filed a suit in the Court of Additional 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 Right of Prior Purchase Art, 11 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. I paying the sale price of Rs 13,000/--. Hence this appeal by special leave .

Reasoning: 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.6.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.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 S. 15 (fourthly) 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 constructionan 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 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 case the owners of the buildings would stand more or less in the position of co-sharers, through 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 pre-emption in such a case was sustainable. The reasoning employed in upholding the validity of the fourth ground in S. 16 of the Punjab Act would apply with equal force to the provisions of S. 15 (fourthly) before us. Consequently, the contention that the impugned provision amounts to an unreasonable restriction cannot be sustained.