QUDRAT ULLAH Vs. MOHAMMAD YASIN

JUDGEMENT

(1.) This is a plaintiff's second appeal in a suit for pre-emption. The plaintiff Qudrat Ullah and the third defdt. Smt. Akhtari Begum were said to be the co-owners of a house of which a Kotha was sold by the third defendant to defendants Nos. 1 and 2 by a sale deed dated 13th July. 1970, registered on 18th July, 1970. The plaintiff alleged that he himself had sold a half share in the house to the third defendant some three years before the suit, that is, some time in the year 1968 for Rs. 750/- that the plaintiff and the third defendant were in joint possession of the house, but for some time past the plaintiff was living at Delhi in connection with his business and that when he visited Amroha during the mango season, in 1971, he found the defendants Nos. 1 and 2 to be in occupation of a portion of the house. The plaint proceeds On to allege that the plaintiff thereupon inquired from the defendants Nos. 1 and 2 as to how they were living in the house, but he did not get any satisfactory reply, rather, he was told that he should inquire about it from the third defendant. Thereupon, the plaintiff made inquiries from the third defendant, who told him that she had sold that portion of the house to defendants Nos. 1 and 2. The plaintiff immediately made the necessary demand for pre-emption and then inquired from the defendant the circumstances in which she had sold the property without first asking him to purchase it, on which the third defendant said that she was in urgent need of Rs. 2,000/- and since he, the plaintiff, was at Delhi she could not contact him. The plaintiff alleged, that he then made the formal demand for pre-emption to the defendants in the presence of the witnesses and thereafter collected some respectable members of the community and complained to them about the conduct of the defendant. Further, according to the plaintiff, the value of the property was in no case more than Rs. 2000/- but it was wrongfully shown to have been sold for Rs. 5,500/-. This is followed by the averment that the plaintiff is always ready to have a sale executed in his favour on payment of the correct price, but the defendants were not willing, hence the suit. July 10, 1971 was alleged to be the date on which the plaintiff came to know of the sale.

(2.) Only defendants NOS. 1 and 2 defended the suit. They denied the plaint allegations, It was alleged that, in the sale deed dated 28th May, 1968, executed by the plaintiff in favour of the third defendant, the Kotha had been excepted and the plaintiff never had any concern with it. He was not a co-sharer. Defendant No. 3 was ill separate and exclusive possession of the Kotha and the plaintiff was not Shafi-i-Shariq in respect thereof. It was next asserted that the Kotha was purchased for cash consideration of Rs, 5,500/- and the allegation that it was not worth more than Rs. 2000/- was wholly false that the whole proceedings of the sale deed executed by the third defendant in favour of the answering defendants took place in the presence and knowledge of the plaintiff, and even possession of the property was delivered by the third defendant in the presence of the plaintiff. The answering defendants had told the plaintiff that they had purchased the property for Rs. 5,500/-on which the plaintiff had retorted that they had purchased it dear. The answering defendants stated that the necessary demands for pre-emption were never made, and they also denied the rest of the allegations of the plaintiff. The plea of estoppel was also raised. The following were the issues on which the parties went to trial:-1. Whether the plaintiff is a co-sharer in the suit property? 2. Whether the plaintiff made de-mads as alleged?

(3.) Whether the suit is barred by estoppel?