BHANWAR LAL Vs. SHANKAR LAL

JUDGEMENT

(1.) THE defendant appellant seeks to quash the decree and judgment dated December 19, 1980 of the learned District Judge, Tonk whereby the suit for pre-emption in respect of suit property came to be decreed. THE parties shall be referred hereinafter in the same manner as they were arrayed in the plaint.

(2.) AS per the averments made in the plaint the suit property was sold by the second defendant Bajrang Lal to the first defendant Bhanwar Lal through a registered sale deed executed on November 2, 1978. The plaintiff claimed that his house situated towards the north side of suit property and there is only one way which leads to the suit property and the house of the plaintiff. On account of right of easement the suit property ought to have been sold to the plaintiff but it was sold to the first defendant and thus right of the pre-emption of the plaintiff was affected. The plaintiff therefore sought a decree of pre-emption in respect of suit property. The defendants in the written statements pleaded that the plaintiff had no right of pre-emption in respect of suit property. The property was purchased by the first defendant after obtaining oral consent of the plaintiff and the plaintiff was estopped from challenging the sale and right of pre-emption. AS the plaintiff gave the consent, question of serving written notice did not arise at all.

(3.) MR. N. K. Maloo, learned counsel appearing for the plaintiff canvassed that the argument that due to lack of cross examination on same point the court is bound to accept the defendants plea, is not tenable. It was contended by the learned counsel that the plea is totally false, improbable and after thought as much as it is difficult to believe that Narendra Kumar Jain and Ram Pal Sharma both advocates who had actually done every thing in the transaction would have taken the risk of verbal conversation rather than issuing notice under Section 8 of the Rajasthan Pre-emption Act. Therefore in the facts of the case the plea of estoppel is totally false and unbelievable. Reliance was placed on The Commissioner of Income Tax vs. Durga Prasad More (1), Sachindra Nath vs. Nilima (2), Sukhraji vs. Calcutta Transport Corporation (3), and Ambika Singh vs. State