KAMLA Vs. PAWAN KUMAR AND OTHERS

JUDGEMENT

(1.) Plaintiff filed a suit for possession by way of pre-emption. The suit of the plaintiffs was decreed by the Senior Sub Judge Panipat vide judgment and decree dated 3.2.1994. Aggrieved by the same, defendants filed an appeal and the same was allowed by the learned Additional District Judge(I) Panipat vide judgment and decree dated 29.2.1996 and the judgment and decree of the trial Court was set aside . Hence, the present appeal by the plaintiff.

(2.) The case of the parties, as noticed by the learned Seniorl Sub Judge, in paras 2 and 3 of its judgment reads as under:- " 2. In brief, the case of the plaintiff is that Manga and Smt.Natho, defendant no. 4 and 5, sold their share in the land detailed and described above to defendants No.1 to 3 for a consideration of Rs.40,000/- vide registered sale deed dated 11.7.91. According to the plaintiff, she is a co-sharer in the land detailed and described above. No notice of sale was given to her. Defendants no. 1 to 3 are totally strangers and had no share in the suit land at the time of sale whereas the plaintiff being a co-sharer in the suit land has superior right to pre-empt the sale. It has further been pleaded by the plaintiff that previously, one Nekhi son of Hardwari Lal was a co-sharer in the suit land to the extent of 16/52 share. The plaintiff purchased the land from him on 15.7.1980 through a registered sale deed and thus, became a cosharer in the land in dispute. Thus, according to the plaintiff, she being a co-sharer has a superior right to pre-empt the sale. Inspite of having requested, the defendants have refused to accept the claim of the plaintiff and have refused to deliver the possession of the suit land to her on receipt of Rs.40,000/-. Hence, this suit.

(3.) In the written statement filed by the defendants, it has been averred that the plaintiff is not a co-sharer in the suit land and has no right, title or interest in the suit property, therefore, she has no superior right to pre-empt the sale. In these circumstances, it has been prayed that the suit of the plaintiff be dismissed. A number of preliminary objections have also been taken, such as, the plaintiff has no right, or interest in the suit property, the suit is bad for misjoinder and non-joinder of necessary parties, the suit is not maintainable in the present form and the plaintiff has no locus standi to file the present suit. It has further been averred by the defendants that the father of defendants no. 1 to 2 is a tenant on the suit land. In these circumstances, the plaintiff has no superior right to pre-empt the sale." On the pleadings of the parties, the following issues were framed by the trial Court:- "1.Whether the plaintiff has superior right of pre-emption OPP 2.Whether the plaintiff has no locus standi OPD 3.Whether the plaintiff has no right or interest in suit property OPD 4.Whether the suit is bad for misjoinder and non-joinder of necessary parties OPD 5.Whether the suit is not maintainable OPD 6. Relief."