SURESH CHAND Vs. SURESH CHANDER

JUDGEMENT

(1.) Leave granted.

(2.) This appeal arises from a judgment and order of the High Court of Judicature of Rajasthan at Jaipur in a second appeal under Section 100 of the Code of Civil Procedure 1908.

(3.) The issue in the present appeal is whether a right of pre-emption was available to Beni Prasad who is alleged to be a joint owner in possession of the disputed courtyard. This has arisen in the context of the Rajasthan Pre-emption Act 1966, "the Act". Briefly stated, the facts which have given rise to the present appeal are thus: A suit Civil Suit Case No 71 of 1993 for pre-emption was instituted by Beni Prasad in the Court of the Civil Judge, Senior Division, Badi, District Dholpur in Rajasthan. Beni Prasad died during the pendency of the proceedings and is represented by respondents 1 to 13. Beni Prasad and Kirorilal were brothers. Beni Prasad filed the suit for pre-emption, against Devicharan who was impleaded as the first defendant and Kirorilal who was impleaded as the second defendant. The appellants in the present appeal are the sons of Devicharan. A sale deed was executed on 6 January 1990 by Kirorilal in favour of Devicharan by which Kirorilal sold his house along with the disputed courtyard to Devicharan. The basis of the suit was that Beni Prasad and Kirorilal, as brothers were joint owners in possession of the disputed courtyard having a half share each. It was argued that the plaintiff in his capacity as the brother of the second defendant, had a right of pre-emption which would prevail against the first defendant, in regard to the purchase of the house and the courtyard from the second defendant. The suit was contested by the defendants who filed their written statements. The defence was that the original owners of the property Pyare Lal and Baboo Lal had sold the disputed house to Prabhu Lal, who was the father of the original plaintiff and the second defendant. In the written statement, a plea was taken that on 17 January 1956, a partition had been effected between the members of the family as a consequence of which, the second defendant was allotted the disputed house and the courtyard and the original plaintiff was allotted another property.