Pre-Emption Suit Falls With Repealed Statute: J&K High Court Dismisses Appeal After J&K Right to Prior Purchase Act Abolished

The J&K High Court held that a pre-emption suit filed under the J&K Right to Prior Purchase Act could not survive once the legislature repealed that Act before a decree was passed by the trial court.

Justice Sanjay Dhar, sitting singly at the Srinagar bench, dismissed a regular first appeal challenging the Principal District Judge, Budgam’s order of 7 August 2025, which had thrown out a suit for the right to prior purchase. The suit had been brought by Mst. Jana — whose legal representatives continued the proceedings after her death — under the J&K Right to Prior Purchase Act. That Act was repealed by the J&K Reorganisation Act, 2019 while the suit was still pending. The trial court dismissed the suit relying on this Court’s earlier decision in Mohammad Jamal Parray v. Ghulam Qadir Mir & Ors. (CR No. 32/2022, decided 24 July 2024). The appellants argued that the right of pre-emption survived under Muslim Personal Law and that the Parray judgment was wrongly decided. The High Court rejected both contentions and affirmed the dismissal.

The Suit and Its Statutory Foundation

Mst. Jana had filed a suit seeking a decree of right to prior purchase with possession and injunction in respect of land measuring 01 kanal 01 marlas falling under Khasra No. 1097-min, situated at Village Buzgoo Lashikallan, Tehsil Chadoora. The respondents were impleaded as defendants. The suit alleged that a sale deed executed by defendant No. 1 in favour of defendant No. 2 violated the provisions of the J&K Right to Prior Purchase Act.

The plaint expressly stated in its title that the suit was filed under the provisions of the J&K Right to Prior Purchase Act. The relief claimed and the cause of action were both anchored entirely in that statute. While the suit was pending, the J&K Reorganisation Act, 2019 repealed the J&K Right to Prior Purchase Act. The trial court then dismissed the suit, drawing on the reasoning in Mohammad Jamal Parray.

Appellants’ Challenge: Muslim Personal Law and the Parray Judgment

Before the High Court, the appellants pressed two arguments. First, they contended that the right of pre-emption is a settled enforceable right under Muslim Personal Law and that the repeal of the statutory Act could not extinguish it. Second, they argued that the judgment in Mohammad Jamal Parray, on which the trial court had relied, did not lay down the correct position of law.

Both contentions were rejected.

Muslim Personal Law Does Not Extend to Pre-Emption

Justice Dhar addressed the Muslim Personal Law argument directly. The Court held that Muslim Personal Law in India applies only to matters relating to marriage and inheritance, and to no other matters. A claim of right to prior purchase falls outside both categories. The appellants’ contention that Muslim Personal Law could sustain the pre-emption claim was, in the Court’s words, “wholly misconceived.”

The Court also examined the pleadings in the original suit. The plaintiff had based her relief specifically on the provisions of the J&K Right to Prior Purchase Act. The title of the plaint named that Act. The averments challenged the sale deed as being in violation of that Act. Given these specific pleadings, the Court found it impossible to treat the suit as having been filed on any ground other than those available under the repealed statute.

The Binding Effect of Punyadeo Sharma

On the challenge to the Parray judgment, the Court noted that the decision in Mohammad Jamal Parray was itself grounded in the Supreme Court’s ruling in Punyadeo Sharma and others etc. v. Kamla Devi and others etc., 2022 LIVELAW (SC) 22. Once the Supreme Court settles a legal position, that position binds all courts throughout India.

In Punyadeo Sharma, the Supreme Court laid down that a pre-emptor must hold the right to pre-empt on three dates: the date of the sale, the date of filing of the suit, and the date of passing of the decree by the court of first instance. The pre-emptor must prove that the right continued to subsist until the first court passed its decree. If the claimant loses that right at any point before the decree, the suit for pre-emption must fail.

Applying this to the facts, the Court observed that before the trial court could pass a decree in Mst. Jana’s suit, the legislature had abolished the very right she was seeking to enforce by repealing the J&K Right to Prior Purchase Act. The right did not subsist on the date the decree was to be passed. The suit was therefore bound to fail, and the trial court’s dismissal was correct.

Outcome

Justice Sanjay Dhar found no ground to interfere with the impugned judgment of the Principal District Judge, Budgam. The appeal was dismissed as lacking merit, along with the connected application. The order was pronounced on 8 April 2026 and marked as a speaking and reportable order.