MITHAN LAL Vs. SULTAN SINGH

JUDGEMENT

(1.) This judgment will dispose of two connected appeals: R.F.A, 95-D/63 (Mithan Lal v. Sultan Singh etc.) and R.F.A. 98-D/64 (Mithan Lal v. Maya Rani etc.) which arise out of two consolidated suits. Both these suits were dismissed by a common judgment and decree, dated 30th March, 1973, passed by a Subordinate Judge, First, Class, Delhi: The Plaintiff, Mithan Lal, claimed a decree for possession by pre-emption of property bearing Municipal Nos. 1744-1745 and 1747-1748 which is a double storeyed building in two separate suits; one relating to ground floor and the other relating to first floor.. So far as the suit for ground floor was concerned, it related to a sale by respondent, Sumati Devi, in favow of Sultan Singh for Rs. 6,0001- and so far as the suit relating to firs; floor was concerned, that related to a sale by the same vendor in favour of Maya Rani, wife of Sultan Singh, for Rs. 4,000/ The plaintiff-appellant's case regarding ground floor was that Sumati Devi owned a double storeyed building mentioned above in Kucha Lattu Shah, Dariba Kalan, Delhi, and in between was a passage of the appellant's house No. 1746 which adjoined property in dispute at the back. It was pleaded that the vendor Sumati Devi by sale deed dated 25-3-1960 registered on 20-6-1960 had sold the ground floor to respondent. Sultan Singh, which consisted of four godowns bearing Municipal Nos. 1744, 1745 and 1748 in Kucha Lattu Shah, Dariba Kalan, Delhi. It was further pleaded that the custom of pre-emption prevailed in Delhi and in the Locality where the property sold was situate. The appellant claimed the right of pre-emption only under clauses fourthly, fifthly and sixthly of section 16 of the Punjab Preemption Act. as extended to Delhi. Clause sixthly was not pressed as the said clause was declared ultra vires of the Constitution by the Supreme Court. The remaining grounds for pre-emption were thus pressed under clauses fourthly and fifthly which were described as under:

(2.) In the connected suit in respect of the first floor, the same grounds were urged for claiming pre-emption except that the property was described as upper storeyed of the building. It was pleaded that the vendor had recently sold the whole property to Sultan Singh but as a matter of ingenuity got prepared a separate sale deed for that portion.

(3.) So far as the suit relating to ground floor is concerned, the plea of the defendant was that the description of the property given in the plaint was not correct and the two storeyed buildings comprised four shops on the ground floor and offices and residential portions in the first and second floors. The custom of pre-emption was also denied. it was further pleaded that the plaintiff-appellant was estopped from contesting the description of the property as mentioned in the sale deed, namely, four shops; the ownership of the plaintiff was denied. It was pleaded that since the property consisted of shops it was not pre-emptible under section 5 of the Act.