Jammu and Kashmir High Court Overturns Lower Court's Decision on Pre-emption Right

Appellant's conduct invalidates plaintiff's pre-emption claim after 38 years of possession.

In a significant legal development, the Jammu and Kashmir High Court has overturned a previous judgment by the District Judge of Poonch regarding the right of prior purchase. The case, Iqbal Singh v. Durga Devi, dealt with the contentious issue of pre-emption rights under the J&K Right of Prior Purchase Act. The High Court, presided over by Mr. Sanjay Dhar, J., concluded that the plaintiff, Durga Devi, had waived her right of pre-emption through her conduct, thereby upholding the appellant Iqbal Singh's possession of the disputed property.

The dispute originated in 1987 when Durga Devi claimed a right of prior purchase over a property in Poonch Town, which she jointly owned with Isher Dass, the predecessor-in-interest of the respondents. Despite her claims and a subsequent lawsuit, the property had been purchased by Iqbal Singh from Isher Dass. The trial court originally ruled in favor of Durga Devi, granting her the right to the property upon the payment of Rs. 40,000.

Upon appeal, the High Court found that Durga Devi's earlier conduct-filing a suit for injunction without asserting her pre-emption rights and then abandoning it-constituted a waiver of her pre-emption rights. Mr. Dhar highlighted that pre-emption is a weak statutory right that can be waived through conduct, as established in previous judgments and legal principles.

The High Court's decision emphasized that recognizing Durga Devi's claim after 38 years would result in grave injustice to Iqbal Singh, who had significantly altered the property and resided in it for decades. The judgment underscored the repealed status of the J&K Right of Prior Purchase Act, aligning with the broader legal context post the J&K Reorganization Act, 2019.

This ruling not only sets a precedent for similar cases but also reaffirms the notion that equitable considerations and the passage of time can play a critical role in pre-emption disputes. The court ordered the refund of the Rs. 40,000 deposited by Durga Devi, thus closing a protracted legal chapter with substantial implications for property rights in the region.

Bottom Line:

The right of pre-emption, being a weak statutory right, can be waived by the conduct of the pre-emptor. A plaintiff who fails to assert the right of pre-emption in a timely and appropriate manner may be estopped from enforcing it later.

Statutory provision(s): J&K Right of Prior Purchase Act, Section 15, Section 19, Section 21, Section 115 of Evidence Act, J&K Reorganization Act, 2019

Iqbal Singh v. Durga Devi, (Jammu And Kashmir) : Law Finder Doc Id # 2812163