BHAURAO SHRAVAN JAMUNKAR Vs. ALOKABAI NAGORAO JAMUNKAR

JUDGEMENT

(1.) By this first appeal, the appellant challenges the order passed by the Civil Judge (Senior Division), Wardha on 17.08.2007 below Exh.1, whereby the plaint of the appellant was rejected under the provisions of Order VII Rule 11(d) of the Code of Civil Procedure.

(2.) Few facts giving rise to the first appeal are stated thus----- The appellant is the original plaintiff. The appellant had filed a suit bearing Special Civil Suit No.61/2007 for a declaration that he had a right of preemption to purchase a property belonging to the defendant no.1 at the market price. It was pleaded by the plaintiff that the property was the joint family property of the parties in the hand of one Chandrabhan. Chandrabhan had two sons by name Shravan and Nagorao. The plaintiff is the son of Shravan, whereas defendant no.1 is the daughter of Nagorao. It is pleaded in paragraph 2 of the plaint that in view of the judgment delivered by the High Court in Second Appeal No.200/1974 on 27.09.1999, the suit property was allotted to the share of defendant no.1. In view of the execution proceedings bearing Special Darkhast No.63/1992 the possession of the property was also delivered to the defendant no.1 and her name was recorded in the revenue records as also in the 7/12 extracts. It was then pleaded by the plaintiff that the defendant no.1 was trying to sell the suit property and was also negotiating with third parties for selling the same. According to the plaintiff, he had a right of preemption to purchase the same at a reasonable market rate and, therefore, the market value of the property may be fixed by issuing a public notice. It is then pleaded that though the plaintiff had expressed his desire to purchase the property of the defendant no.1, the defendant no.1 was not ready to sell the property to the plaintiff, and hence, the suit was instituted.

(3.) In stead of filing the written statement, the defendant no.1 filed an application under Order VII Rule 11(d) of the Code of Civil Procedure for rejection of the plaint. It was admitted by the defendant that the suit property was owned by defendant no.1 and she was put in separate possession of the property in a partition by metes and bounds. In view of the aforesaid facts, according to the defendant no.1, the plaintiff had no preferential right of preemption under the provisions of Section 22 of the Hindu Succession Act, 1956. It was the case of the defendant no.1 that the suit was barred by law and was, therefore, liable to be rejected under the provisions of Order VII Rule 11(d) of the Code of Civil Procedure.