RAMESH CHAND Vs. KANWAR SEN

JUDGEMENT

(1.) ORDER :- Plaintiffs 1 to 4 are the sons of defendant 1, Shri Kanwar Sen. They formed an HUF which owned large properties mentioned in the plaint. Subsequently these properties were divided amongst the parties and they became separate. On 30-3-1976 a partition deed was executed between them, which was subsequently registered on 27-7-1976. By virtue of the said partition deed properties No. 437 and 438, Kucha Brij Nath, Chandni Chowk, Delhi and property Nos. 252 and 253, Ward No. II, outside Kucha Ghasi Ram, Chandni Chowk, Delhi came to the share of the plaintiff and property No. 439, Kucha Baij Nath fell to the share of their father, the first defendant. Since the said properties were adjoining each other it was agreed between the parties that, if either of the party to the partition deed wishes to transfer or sell any part of the property allotted to it, then it would first offer the same for sale to the other party and on refusal of the other party, the party offering will have right to sell the same in the open market. Thus a preferential right of purchase was given by the parties mutually, to each other.

(2.) The plaintiffs have now filed the present suit to enforce their right of pre-emption as per the partition deed and the cancellation of sale deed dt. 10-10-1981 executed between the defendants and for possession of the property bearing No. 439, Kucha Baij Nath, Chandni Chowk, Delhi. The allegations are that the defendant 1 illegally and without notice to the plaintiffs, transferred by sale his portion i.e. property No. 439, Kucha Baij Nath, Chandni Chowk, Delhi, to the second defendant namely - Shri Din Dayal Bhargava. On 3-10-1984 the plaintiffs came to know of this fact and on enquiry it was revealed that by virtue of the sale deed dt. 10-10-1981, registered on 12-10-1981, the sale was effected between the defendants for a consideration of Rs. 3,00,000/-. It is also alleged that the second defendant now wishes to construct a new structure and has, therefore, commenced demolition proceedings of the existing structure. The plaintiff now alleges that the sale deed dt. 10-10-1981 is entirely illegal, void, and of no effect in law and the same deserves to be cancelled because it is in violation of their right of pre emption. Hence the present suit praying for a decree for possession in respect of the property No. 439, Kucha Baij Nath, Chandni Chowk, Delhi and a declaration to the effect that the sale deed dt. 10-10-1981 executed between the defendants is null and void and has no effect in law.

(3.) Along with the suit the plaintiff also preferred to move an application LA. No. 7208/1984 under O.39 Rr. 1 and 2 C.P.C. praying for the grant of an ad interim injunction restraining the defendants from alienating, transferring or parting with possession of the suit property or making any other alteration in the existing structure at site. After hearing the learned counsel for the plaintiff on this application, the ad interim injunction as prayed for was granted by this Court on 14-12-1984.