Right Of Pre-Emption Is 'Extremely Weak', Filing Injunction Suit Without Claiming It Amounts To Waiver : J&K&L High Court
The Jammu & Kashmir and Ladakh High Court has reiterated that the right of pre-emption is a very weak right, which can be lawfully defeated by a purchaser and can also be waived by the pre-emptor through conduct, as inferred from the facts and circumstances of a case.
Setting aside a judgment and decree passed by the District Judge, Poonch, in 2001, the Court held that a pre-emptor who files a suit for permanent injunction against a purchaser without asserting their right of pre-emption, despite having knowledge of the sale, is deemed to have waived that right.
Justice Sanjay Dhar observed that if a pre-emptor refuses to purchase the property or acquiesces in the sale, he is disqualified from subsequently maintaining a suit for pre-emption as he is estopped from seeking to enforce his right by virtue of Section 115 of the Evidence Act.
Background
The appeal arose from a judgment passed by the District Judge, Poonch, whereby a suit filed by the respondent-plaintiff seeking enforcement of the right of prior purchase (pre-emption) was decreed, and possession of the suit property was ordered to be delivered to her upon payment of ₹40,000. The appellant-purchaser challenged this decree before the High Court.
Appearing for the appellant, Advocate KL Pandita contended that the plaintiff had waived her right of pre-emption. It was argued that after the sale deed was executed in favour of the appellant, the plaintiff filed an earlier suit merely seeking a permanent injunction against encroachment, without claiming pre-emption, despite having full knowledge of the sale.
The appellant further submitted that the plaintiff abandoned that earlier suit, and the appellant had even altered the property (demolition) during that period.
On the other hand, Advocate Mehrukh Syedan, representing the respondent-plaintiff, argued that the right of pre-emption was a statutory right accrued under the J&K Right of Prior Purchase Act and therefore could not be waived by conduct or defeated by admissions.
It was submitted that a statutory right stands on a different footing and cannot be nullified through estoppel.
HC Observations
The core issue framed by the High Court was whether, by her conduct, the plaintiff had waived her right of prior purchase in respect of the suit property. To answer this, the Court undertook a detailed examination of the pleadings, evidence, prior litigation between the parties, and the settled legal position governing pre-emption.
Justice Dhar traced the nature of the right of pre-emption, noting that it is not a right to the property itself but merely a “right of substitution”, enabling the pre-emptor to step into the shoes of the vendee.
Relying upon Supreme Court's judgments in Bishan Singh vs. Khazan Singh and Barasat Eye Hospital vs. Kaustabh Mondal, the Court recorded:
"… it is clear that the right of pre-emption is a very weak right and it can be defeated by a purchaser of property by all lawful means and it can also be waived by the pre-emptor by his conduct which can be inferred from the facts and circumstances of a case".
Applying these principles to the facts, the Court noted that after issuing a notice under Section 19 of the Act expressing her desire to purchase, the plaintiff filed a suit for injunction on June 3, 1987, with full knowledge of the sale, yet consciously omitted to seek enforcement of her right of pre-emption. She merely asserted that the appellant should not encroach upon her portion.
The Court found that such conduct led the appellant to believe that the plaintiff had acquiesced in the sale, particularly as the evidence showed the appellant had demolished a portion of the house during the pendency of the injunction suit. This, according to the Court, squarely attracted the doctrine of estoppel by acquiescence.
"This conduct of the plaintiff/respondent No. 1 allowed the appellant to believe that she had waived her right of pre-emption", the Court remarked. It added that the trial court committed a grave error by ignoring this aspect and focusing solely on the nature of the property (under clause 'secondly' of Section 15 of the Act).
Significantly, the Court also invoked the doctrine of equity. Justice Dhar observed that asking the appellant to vacate the property after 38 years of continuous occupation for a "meagre sum of Rs. 40,000" would result in grave injustice.
The Court noted that the right of pre-emption impinges upon the constitutional right to property and that the J&K Right to Prior Purchase Act stands repealed following the J&K Reorganisation Act, 2019. "In these circumstances granting a decree of possession...would be grossly inequitable", the Bench held.
The Court thus concluded that the plaintiff had waived her right of pre-emption. Accordingly, the appeal was allowed, the impugned judgment and decree dated February 14, 2001, were set aside and the amount deposited by the plaintiff was directed to be refunded.
Case Title: Iqbal Singh Vs Durga Devi & Ors
Citation: 2026 LiveLaw (JKL)