whether the limitation shall commence from the first sale deed after coming into force of the Rajasthan Pre-Emption Act, 1966 or from any other subsequent sale on the basis of Article 97 of the Limitation Act, 1963.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1442 OF 2016
RAGHUNATH (D) BY LRS. ….APPELLANTS
VERSUS
RADHA MOHAN (D) THR. LRS & ORS.….RESPONDENTS
J U D G M E N T
SANJAY KISHAN KAUL, J.
1. The singular question this Court had framed for consideration in this
appeal was whether the limitation shall commence from the first sale deed
after coming into force of the Rajasthan Pre-Emption Act, 1966 or from
any other subsequent sale on the basis of Article 97 of the Limitation Act,
1963. This question arises in this proceeding in a situation where the
1
original plaintiff sought to enforce such right after three sale transactions
had taken place in the past involving the subject immovable property in the
years 1945, 1946 and 1966. The last transaction was effected on 5th
November that year, after the 1966 Act had become operational. The
factum of the plaintiff’s entitlement otherwise claim right of pre-emption in
terms of Section 6 of the 1966 Act is not in dispute in this proceeding. In
the suit out of which this appeal arises, the plaintiff’s suit for pre-emption
over a transaction effected on 21st January 1974 was resisted on the ground
of being barred by limitation.
2. In order to determine the aforesaid question of law framed by this
Court in terms of the order dated 05.01.2016, it is necessary to discuss the
nature of the right of pre-emption. In this behalf, we had discussed the
right of pre-emption in a recent judgment in Barasat Eye Hospital & Ors.
v. Kaustabh Mondal1
. The said judgment, authored by one of us (Sanjay
Kishan Kaul, J.), in its initial paragraph itself discusses this aspect and it
would suffice to quote the same.
“1. The right of pre-emption holds its origination to the advent
of the Mohammedan rule, based on customs which came to be
accepted in various courts largely located in the north of India. This
1 (2019) SCC Online SC 1351
2
law is stated to be largely absent in the south of India on account of
the fact that it never formed a part of Hindu law in respect of
property. However, this law came to be incorporated in various
statutes, both, prior to the Constitution of India (for short ‘the
Constitution’) coming into force, and even post that.2 The
constitutional validity of such laws of pre-emption came to be
debated before the Constitution Bench of this Court, in Bhau Ram,
3
.
There are different views expressed by the members of the
Constitution Bench of five Judges, and also dependent on the various
State legislations in this regard. Even though there were views
expressed that this right of pre-emption is opposed to the principles
of justice, equity and good conscience, it was felt that the
reasonableness of these statutes has to be appreciated in the context
of a society where there were certain privileged classes holding land
and, thus, there may have been utility in allowing persons to prevent
a stranger from acquiring property in an area which has been
populated by a particular fraternity or class of people. This aspect
was sought to be balanced with the constitutional scheme,
prohibiting discrimination against citizens on the grounds of only
religion, race, caste, sex, place of birth or any of them, under Article
15 of the Constitution, and the guarantees given to every citizen to
acquire, hold and dispose of property, subject only to the test of
reasonable restriction and the interest of general public.”
The judicial approach adopted towards this right of pre-emption was
thereafter discussed in the said judgment in the following terms:
“10. In order to appreciate the aforesaid provisions relating
to the right of pre-emption, it would be appropriate to refer to
an extremely lucid judgment of this Court by Justice K.
2 Bhau Ram v. Baij Nath Singh, AIR 1962 SC 1476
3 supra
3
Subbarao (as he then was), setting forth the contours of the
right of pre-emption in Bishan Singh v. Khazan Singh4
, in a
four Judge Bench judgement. The Bench proceeded to discuss
the view of different Courts on this right of preemption, as
found in the following:
a. Plowden, J. in Dhani Nath v. Budhu,
5
b. Mahmood, J. in Gobind Dayal v. Inayatullah,
6
.
c. Mool Chand v. Ganga Jal,
7
.
11. In view of the aforesaid elucidation, it was opined that
the preemptor has two rights: first, the inherent or primary
right, i.e., right for the offer of a thing about to be sold; and
second, the secondary or remedial right to follow the thing
sold. The secondary right of preemption is simply a right of
substitution, in place of an original vendee and the pre-emptor
is bound to show not only that his right is as good as that of
that vendee, but that it is superior to that of the vendee. Such
superior right has to subsist at the time when the pre-emptor
exercises his right. The position is thereafter summarized in
the following terms:
“11. …..(1) 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. (2)
The pre-emptor has a secondary right or a remedial right to
follow the thing sold. (3) It is a right of substitution but not
of re-purchase i. e., the pre-emptor takes the entire bargain
and steps into the shoes of the original vendee. (4) It is a
right to acquire the whole of the property sold and not a
share of the property sold. (5) Preference being the essence
of the right, the plaintiff must have a superior right to that
4 AIR 1958 SC 838
5 136 P.R. 1894
6 (1885) ILR 7 All 775, 809
7 (1930) ILR 11 Lahore (F.B.) 258, 273
4
of the vendee or the person substituted in his place. (6) The
right being a very weak right, it can be defeated by all
legitimate methods, such as the vendee allowing the
claimant of a superior or equal right being substituted in his
place.”
On having set down the contours of the aforesaid right, we turn to the facts
of the present case.
Facts:
3. The Rajasthan Pre-Emption Act, 1966 (hereinafter referred to as ‘the
Act’) was brought into force on 1.2.1966. In view of the rights conferred
under the Act, a suit was filed by the predecessor-in-interest of respondent
No.1 seeking a decree of pre-emption against the predecessor-in-interest of
the appellant herein and respondent Nos. 4 to 6 herein, on 10.1.1974, which
was numbered as Civil Suit No. 40/1975. The property in question is
situated in a building bearing AMC No. XV/290 situated in Kayasth
Mohalla, Ajmer (‘suit schedule property’) and is predicated on account of
having a common portion in the said property. The plaint stated that
respondents 5 and 6 herein (original defendants 3 and 4) were owners and
in possession of the part of the property which was sold to respondent No.
4 herein (the original defendant No. 2), vide sale deed dated 10.01.1974 for
5
a consideration of Rs. 4000/-. respondent No. 4 further sold this property
to the appellant herein (original defendant No.1 being the predecessor-ininterest) on 21.01.1974 once again for the same consideration. The other
facts stated in the plaint are not required to be gone into nor pleaded,
except that there is an allegation that the two portions were part and parcel
of the same house having main entrance, lavatory and staircase in common
and that no notice, as provided for under Section 8 of the Act, had been
served, which mandates a notice to pre-emptors (forming part of the
procedure as set out in Chapter III of the Act). The suit was resisted. The
sale of the property as per the two sale deeds was not disputed. The plea
was, however, raised that there were two separate lockable premises and as
such no right of pre-emption accrued in favour of the original plaintiff.
Once again, it is not necessary to go into other defences for adjudication of
the present matter. It may, however, be noted that the written statement
stated that yet another sale agreement was entered into on 25.10.1974 and
the purchaser had not been made a party to the suit.
4. The Trial Court framed as many as eight issues including the plea of
bar of limitation. The suit was decreed in terms of the judgment dated
30.6.1977, inter alia finding that the suit had been filed within the period of
6
limitation of one year. An appeal was preferred against this order and
during the pendency of the appeal an application was filed to amend the
written statement inter alia raising the plea that there were even earlier sale
deeds of 1945, 1946 and 1966 where the respondents 5 and 6 herein had
purchased the property vide sale deed dated 5.11.1966. The earlier sale
deeds not having been challenged, the right of pre-emption could not be
exercised and was barred by time. This resulted in four additional issues
being framed arising from the plea of limitation and the matter was
remitted to the Trial Court in terms of the judgment dated 22.5.1987 of the
first appellate Court.
5. The Trial Court gave its consideration on the additional issues and
took note of the fact that the earlier two sale deeds were even prior to the
coming into force of the said Act. The court, however, noticed that even
prior to the coming into force of the said Act, laws of pre-emption did exist
in Ajmer. The sale deed dated 5.11.1966 came into existence after the said
Act came into force. It was opined by judgment dated 1.2.1988 that
without challenging that sale deed, the suit would not be maintainable and
would be barred by limitation relying upon the judgment of the Assam
7
High Court in Kutina Bibi and another vs. Baikuntha Chandra Dutta and
others8
.
6. The first appellate Court once again considered this judgment of the
Trial Court in Civil Appeal No.129/1985 on the additional issues decided in
terms of that judgment. The appellate court, in terms of the judgment dated
30.03.1989, agreed with the finding of the Trial Court on the ratio of
Kutina Bibi (supra).
7. The matter was thereafter taken upto the Rajasthan High Court vide
S.B.C.S. Appeal No. 65/1989. The High Court noticed that the only
question before it was on the point of limitation as per the provisions of
Article 97 of the Limitation Act. 1963. The High Court in terms of the
impugned judgment dated 29.06.2009 opined that the one year limitation
period is to run from the date of registration of the sale deed or the date
when physical possession of the property was given; and the sale deed
would be the sale deed in question. The High Court negated the plea that
the earlier sale deeds would have to be assailed and concluded that each
sale of such property gives a fresh cause of action. The suit was found to
have been filed within time and the matter was remitted back on merits to
8 AIR 1961 Assam 1
8
be decided by the first appellate Court. In the Special Leave Petition filed,
notice was issued on 9.10.2009 and interim stay of the impugned order was
directed. Leave was granted on 12.2.2016 and the question of law was
framed on 05.01.2016.
Rival Contentions:
8. The arguments advanced by Mr. Irshad Ahmad, learned counsel for
the appellant is on dual contours. The first argument was based on the
policy behind the right of pre-emption, i.e. that no stranger should be
allowed to thrust himself upon the co-sharer in a property against their will
and to prevent apprehended inconvenience to the co-sharer. In that context,
it was urged that the admitted position was that the predecessor-in-interest
of the appellant herein was a distant relative of the predecessor-in-interest
of respondent No.1 herein and this fact had been admitted by the original
plaintiff as also by the son of Manna Lal (the executor of the sale deed of
1946) in their depositions. The second plea advanced was that if a plaintiff
waived his right of pre-emption by conduct, no such right is available on a
subsequent sale of the same property and the plaintiff is estopped from
claiming any right of pre-emption of subsequent sale.
9
9. In support of their contention, learned counsel referred to the
following judgments:
(a) Prahlad Kumar vs. Kishan Chand & Ors.9
This judgment of the Rajasthan High Court, while rejecting the right of
pre-emption, based it on two aspects. The first was a factual one that it was
not a case of sharing a common property. The relevant portion is the
second aspect where it was held even if the right is presumed to have been
established, though not established in that case, the plaintiff was estopped
from claiming his right of pre-emption as he had waived his right when the
property was sold at an earlier date and pre-emption was not claimed then.
(b) Mangti Ram vs. Onkar Sahai10
In this case, the right of pre-emption was held to have been given up on
account of an earlier compromise deed to which the plaintiff had been a
party.
(c) Kutina Bibi & Anr. vs. Baikuntha Chandra Dutta & Ors.11
This judgment once again dealt with the plea of pre-emption against a
subsequent sale, where vide an earlier sale deed of 1950, the plaintiff9 2009 (3) RLW 2441
10 (1994) 1 RLW 55
11 Supra
10
cosharer’s share had been sold by her son and thus, it was held that not
having assailed the earlier sale deed, the right of pre-emption could not be
claimed against the subsequent sale.
(d) Ghulam Jilani vs. Hassan Khan & Ors.12
There was an earlier sale deed and a subsequent sale deed. At the stage of
the initial sale deed, the cosharer did not object. At the stage of the second
sale deed, the cosharer sought to object. The court debated the issue of
competing rights of the cosharer and the subsequent buyer in pursuance to
the first sale deed. It was opined, while agreeing with the lower court, that
the plaintiff’s suit was barred by time, having been instituted more than a
year after the earlier sale which alone he was entitled to impugn.
(e) Ghanshyam vs. Chand Bihari & Ors.13
The factual matrix shows there were many cosharers. Two of the cosharers
transferred their rights to a third party. One by sale and one by gift. Third
party, in turn, sought to transfer to another party. It is at that stage, one of
the cosharers claimed a right of pre-emption. It was found on facts that
when the said third party sought to transfer his right, plaintiff never showed
willingness to purchase the same, as they were not having sufficient means.
12 PLR 1905 (Vol.VI) 338
13 (2008) 2 RLW (Rev) 1011
11
It was opined that the plaintiff’s father never tried to assert his right in the
matter of purchasing that portion earlier and subsequently also, during his
lifetime, he never tried to enforce his right of pre-emption. As such, right of
pre-emption was said to have been waived by conduct.
(f) Rukmani Devi (Smt.) vs. Prabhu Narayan & Ors.14
The pre-emption right under Section 6 of the Act was discussed with an
explanation that the right of pre-emption is a weak right and thus if a
plaintiff pre-emptor waives or gives up his right without raising any
objection to the sale in favour of the third party, the court should not allow
substitution in the sale deed at the instance of such plaintiff pre-emptor,
who has already given up his right.
10. On the other hand, Ms. Christi Jain, learned counsel for the
respondent sought to support the impugned judgment on the plea that the
limitation to enforce a right of pre-emption under the Act is governed by
Article 97 of the Limitation Act, 1963 read with Section 21 of theAct.
Thus, each sale deed is a separate cause of action. On a reading of Section
8 of the said Act, it was contended that the seller is required to inform all
persons as to the price he is proposing to sell at and thus the language of
14 (2007) 4 RLW 2882
12
the provision is clear that it applies to all such incidents of sale. Thus, it
was pleaded that it cannot be said that if such a right is not exercised, it
would allow foreclosure for any subsequent sale, since there is no provision
in the said Act, prohibiting the right of pre-emption if the right is not
exercised. It was also contended that the question of waiver is set out in
Section 9 of the said Act, which does not provide for an eventuality that the
right of pre-emption would not be applicable for a subsequent sale. The
last aspect argued was that this right is based on substitution in place of the
vendee on payment of the price and it does not challenge the sale but seeks
substitution of the plaintiff in place of the vendee. There was, thus, no
need to challenge the earlier sales and not challenging the earlier sales
would not amount to waiver.
11. A reference was made to the following judgments:
(i) Bishan Singh & Ors. vs. Khazan Singh & Anr.15
The reference to the aforesaid judgment has been made in the context of
the observations of Mahmood, J. in Gobind Dayal case (supra) referred to
above that it is in relation to the right of substitution.
(ii) Barasat Eye Hospital & Ors. vs. Kaustabh Mondal16
15 AIR 1958 SC 838
16 supra
13
This judgment has been relied upon again on the same aforesaid
principle of right of substitution.
The view we adopt:
12. We have given our thoughtful consideration to the aforesaid issue
and in order to determine the same, we had, at the inception itself, set out
the judgment in Barasat Eye Hospital case (supra). We have, thus, referred
to the earlier judicial view in para 10 of the judgment extracted aforesaid.
The historical perspective of the right of pre-emption shows that it owes its
originination to the advent of the Mohammedan rule, based on customs,
which came to be accepted in various courts largely located in the north of
India. The pre-emptor has been held by the judicial pronouncements to
have two rights. Firstly, the inherent or primary right, which is the right to
the offer of a thing about to be sold and the secondary or remedial right to
follow the thing sold. It is a secondary right, which is simply a right of
substitution in place of the original vendee. The pre-emptor is bound to
show that he not only has a right as good as that of the vendee, but it is
superior to that of the vendee; And that too at the time when the pre-emptor
exercises his right. In our view, it is relevant to note this observation and
14
we once again emphasise that the right is a “very weak right” and is, thus,
capable of being defeated by all legitimate methods including the claim of
superior or equal right.
13. We have to examine the legal question before us in terms of the
aforesaid principles. We may notice the observation in the Ghanshyam case
(supra) which deals with the scenario where at the first instance the right
was not exercised apparently on account of lack of financial means and that
was held to be no ground to permit exercise of that right at the second
stage. The consistent view taken by the Rajasthan High Court, as reflected
in not only Ghanshyam case (supra) but also in Rukmani Devi (supra) and
Prahlad Kumar (supra) has been that the right of substitution is capable of
being invoked only at the first instance and does not continue to
substitution is capable of being invoked only at the first instance and does
not continue to permeate for an indefinite period of time for each sale
transaction. In the case of Ghanshyam (supra), finding of the High Court
was that the plaintiffs claiming pre-emption had waived their rights. In the
case of Rukmani Devi (supra), where the plaintiff raised the plea of preemption on second sale transaction, evidence was led by the defendant that
the same plaintiff had earlier refused to purchase the subject property and
15
had on the other hand participated in the sale process. In the case of
Prahlad Kumar (supra), it was found that the plaintiff himself had waived
his right of pre-emption in respect of an earlier sale transaction involving
the same property. Thus, to this extent, the view taken in the impugned
order seems to charter a new course. The view of the Assam High Court in
Kutina Bibi (supra) was consistently followed by the Rajasthan High
Court.
14. In order to now appreciate the controversy, as there appears to be no
other view of this Court on this aspect, we would first turn to the said Act
itself. Right to pre-emption is defined in Section 3 of the Act as under:
“Section 3: “Right of pre-emption” defined
The “right of pre-emption” is the right accruing under
section 4 of this Act, upon a transfer of any immovable
property, to acquire such property and to be substituted
as the transferee thereof in place of and in preference to
the original transferee and “pre-emptor” means a person
having a right of pre-emption.”
Section 6 sets out the right of persons to whom the right pre-emption
accrues and it would suffice to reproduce sub-section (1) as the other subsections deal with different classes of persons having such right.
16
“Section 6: Persons to whom right of pre-emption
accrues
(1) Subject to the other provisions of this Act, the right
of pre-emption in respect of any immovable property
transferred shall accrue to, and vest in, the following
classes of persons, namely:--
(i) co-sharers of or partners in the property transferred,
(ii) owners of other immovable property with a staircase or an entrance or other right or amenity common to
such other property and the property transferred, and
(iii) owners of property servient or dominant to the
property transferred.”
Chapter III sets out the procedure for the exercise of the right of preemption. Section 8 under the said Chapter mandates issuance of notice.
“Section 8: Notice to pre-emptors
(1) 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 persona 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.
(2) 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.”
17
The limitation for exercise of the aforesaid right is stipulated in Section 21,
which reads as under:
“Section 21: Special provision for limitation
(1) Subject to the provisions contained in the proviso to
sub-section (1) of section 5, the period of limitation, in
any case not provided for by article 97 of the First
Schedule to the Limitation Act, 1963 (Central Act 36 of
1963), for a suit to enforce the right of pre-emption
under this Act shall, notwithstanding anything contained
in article 113 of the said schedule of the said Act, be one
year from the date on which,--
(a) in the case of a sale made without a registered saledeed, the purchaser takes under the sale physical
possession of any part of the property sold, and
(b) in the case of a foreclosure, the final decree for
foreclosure is passed.
(2) The period of limitation for a suit to enforce a right
of pre-emption which has accrued before the
commencement of this Act shall, notwithstanding
anything contained in the said Limitation Act, in no case
exceed one year from the commencement of this Act.”
15. In view of the fact that since Section 21 in turn refers to Article 97 of
the First Schedule of the Limitation Act, 1963 it would be appropriate to set
forth the same as under.
18
97. To enforce a right
of pre-emption
whether the right
is founded on law
or general usage
or on special
contract.
One
year.
When the purchaser takes under
the sale sought to be impeached,
physical possession of the whole
or part of the property sold, or,
where the subject-matter of the
sale does not admit of physical
possession of the whole or part of
the property, when the instrument
of sale is registered.
16. The question has to be, thus, analysed in the context of a conjoint
reading of Section 21 of the said Act and Article 97 of the First Schedule to
the Limitation Act, 1963. The stipulation in Section 21 is that the right of
pre-emption has to be exercised, in case of a sale, within one year from the
date of sale and if the sale is not by a registered deed, on the purchaser
taking the physical possession of any part of the property sold. Since the
period has to be as per Article 97, the wordings of the Article show that it is
one year from the date when the sale is registered (in case such registration
takes place as is in the present case). It is this expression, which is sought
to be construed by the respondent No. 1 as well as by the High Court to
mean that it is a recurring right for every sale. The loss of right of preemption on transfer has been defined under Section 9 of the said Act as
under:
19
“Section 9: Loss of right of pre-emption on transfer
Any person having a right of pre-emption in respect of
any immovable property proposed to be sold shall lose
such, right unless within two months from the date of
the service of such notice, he or his agent pays or
tenders the price specified in the notice given under
section 8 to the person so proposing to sell:
Provided that the right of pre-emption shall not be so
lost if the immovable property in question is actually
sold for an amount smaller than that mentioned in the
notice or to a person not mentioned in the notice as
purchaser.”
17. A reading of the Section shows that the loss is only occasioned,
when, within two months from the date of service of the notice, the price is
not tendered. However, that is the loss of the right, vis-à-vis the transaction
in question. The moot point is whether such a right of pre-emption is a
recurring right, i.e. every time the property is sold, the right would rearise,
in a case the pre-empting plaintiff himself has chosen not to exercise such
right over the subject immovable property when sold to another purchaser
earlier.
18. In our view, it would not be appropriate or permissible to adopt legal
reasoning making such a weak right, some kind of a right in perpetuity
arising to a plaintiff every time there is a subsequent transaction or sale
20
once the plaintiff has waived his right or pre-emption over the subject
immovable property. The loss of right mandated under Section 9 of the Act
is absolute. A plain reading of the said provision does not reveal that such
right can re-arise to the person who waives his right of pre-emption in an
earlier transaction. To do so would mean that a person, whether not having
the means or for any other reason, does not exercise the right of preemption and yet he, even after decades, can exercise such a right. This
would create, if one may say, some sort of a cloud on a title and uncertainty
as a subsequent purchaser would not know, when he wants to sell the
property, whether he can complete the transaction or not or whether a cosharer will jump into the scene. This is not contemplated in the 1966 Act.
This is bound to have an effect on the price offered by a purchaser at that
time because he would have an impression of uncertainty about the
proposed transaction.
19. We are in agreement with the consistent view taken in the judgments
earlier of the Rajasthan High Court. So far as the case of Kutina Bibi
(supra) is concerned, the factual basis of that decision does not fit with the
legal controversy involved in this proceeding. In that case, by a previous
transaction the entire land had been sold. It was held in that perspective,
21
that the plaintiff’s right as a co-sharer had become disputed in absence of
challenge to the previous transaction. We are of opinion that such a right is
available once - whether to take it or leave it to a person having a right of
pre-emption. If such person finds it is not worth once, it is not an open right
available for all times to come to that person. The aforesaid being the
position, this would itself be an impediment in exercise of the right of preemption in a subsequent transaction. This is so since, we find the right of
waiver under section 9 of the said Act is relatable to the transaction and
also the person. These provisions may not impede the right of pre-emption
in that particular transaction by a particular pre-emptor and the factum of
not having exercised such a right to an earlier transaction would amount to
the surrender of the right of substitution to such intended pre-emptor.
20. The judgments referred to by the respondent of Bishan Singh (supra)
and Barasat Eye Hospital (supra) are only for the proposition that the right
of pre-emption is a right of substitution – no doubt exists over this
proposition. The question is whether this right of substitution can be
exercised recurringly or only once. Our answer to the query is ‘only once’.
22
21. We may also notice another judgment of this Court in Indira Bai vs.
Nand Kishore17
. Once again in relation to the said Act (it appears that there
is a frequent exercise of this right in Rajasthan apart from West Bengal &
Bihar!) The question which was framed for decision in the case was:
“Is estoppel a good defence to ‘archaic’ right of preemption which is a ‘weak right’ and can be defeated by
any ‘legitimate’ method?”
In the aforesaid context, in para 5, it has been observed that the Act does
not debar the pre-emptor from giving up his right. Rather in case of its
non-exercise within two months, may be for the financial reasons, the right
stands extinguished. “It does not pass on to anyone”. It was further
observed, “No social disturbance is caused. It settles in purchaser. Giving
up such right, expressly or impliedly cannot therefore be said to involve
any interest of community or public welfare so as to be in mischief of
public policy.” These observations, once again, in our view, are based on
the right being weak.
Conclusion:
22. We suppose that the aforesaid answers the dilemma, i.e. whether the
right of pre-emption can be enforced for an indefinite number of
17 (1990) 4 SCC 668
23
transactions or it is exercisable only the first time. We opine that it is only
exercisable for the first time when the cause of such a right arises, in a
situation where the plaintiff-pre-emptor chooses to waive such right after
the 1966 Act becoming operational. Section 9 of the said Act operates as a
bar on his exercising such right on a subsequent transaction relating to the
same immovable property. We also wonder what really remains of this right
of pre-emption after so many years in the facts of this case when the
purchaser has been enjoying it for more than four decades!
23. The result is the impugned order is set aside and the order of the trial
court dated 01.02.1988 and the first appellate court dated 30.03.1989 are
upheld. As the original plaintiff has not challenged the sale effected by him
on 5th November, 1966, the suit of respondent No. 1 (original plaintiff, now
represented by his legal representatives) is thus barred by limitation. This
puts an end to the legal battle which began 45 years ago!
24
24. . The appeal, is accordingly, allowed leaving the parties to bear their
own costs.
……..……………………………….J.
[SANJAY KISHAN KAUL]
……..……………………………….J.
[ANIRUDDHA BOSE]
……..……………………………….J.
[KRISHNA MURARI]
NEW DELHI.
OCTOBER 13, 2020.
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