NISHAT ALAM Vs. SMT. JOHAR ARA SIDDIQUI

JUDGEMENT

(1.) This civil misc. appeal has been preferred by the appellant-plaintiff against the order dated 13.11.1997 passed by the District Judge, Jhalawar whereby the application of The plaintiff filed along-with the suit a/O. 39 Rr. 1 and 2 CPC had been dismissed.

(2.) The plaintiff had filed a suit for preemption alleging that the respondent defendant No. 1 had sold the suit property. The respondent No. 2 had claimed a right of preemption on the ground that the parties were co-sharers and on certain other grounds. Along with the suit an application a/O. 39 Rr. 1 and 2 CPC had been filed praying in the interim injunction for maintaining the status quo as regard the condition of the suit property and by restraining the defendants from alienating the same to avoid further complication.

(3.) The trial Court in the detailed order had found that there are two separate portions of the house in dispute and in between there is a common wall. The contention of the plaintiff to the effect that there was a common entrance was not accepted in view of the will of the son who had divided the portion into two one for the ladies and second for the gents and it was further mentioned therein that there would be no passage for entering into the ladies side. The Court had also gone into the matter whether there was any thing joint in the property belonging to both the parties. The plaintiff and also the defendant were the purchasers of portion of the house. The contention of the learned counsel for the appellant to the effect that assuming that no prima facie case has been made out but if any change is made in the building for which preemption has been claimed, in that situation, that will work against the plaintiff. The trial Court had found that no prima facie case has been made out by the plaintiff, present appellant, nor there is any balance of convenience in favour of the appellant and, therefore, had dismissed the said application.