MOHAN LAL Vs. RASULA

JUDGEMENT

(1.) This is a first appeal by the pltf Mohanlal of Ladnun & arises out of a suit for pre-emption which was dismissed by the learned Dist J., Nagaur.

(2.) On 16-3-1943 Ganpatia & others mtged by conditional sale the house in dispute situated at Ladnun in favour of Rasula & his son Hasan for Rs. 1000/- at Rs. 1/9/- per cent per mensem on account of interest. It was stipulated in the mtge deed that in case the mtgors failed to redeem the mtge by repaying the mtge money within two years, the house will be deemed as having been sold to the mtgees. This period of two years expired on 16-3-1945 but nothing seems to have transpired on that day or thereafter till 6-6-1947 when the mtgees obtained a patta for the house in dispute. On 12-8-1947 Mohan Lal sued for possession of this house by pre-emption on the ground that it touched his house towards the north. The deft Rasula for himself & as the guardian of his son Hasan resisted the suit & pleaded that he had a superior right of preemption as while the pltf's house touched the house in dispute on the back, his house touched it both on the west & the south. He also pleaded that the suit was barred by limitation. The two important issues arising out of these pleadings were issues 1 & 2. The learned Dist J. found that though the suit was within limitation, the defts had a superior right of pre-emption. He therefore dismissed the suit.

(3.) The defts' plea as regards their having a superior right of pre-emption was based on the allegation that they had purchased a house from Chhagana, Maliya & Sadasukh on 27-1-1944 & that this house touched the house in dispute towards the west & the south. Three important questions were agitated in connection with this allegation in the Ct below: (1) That execution of the sale-deed Ex. D-l by Chhagna & others in favour of Rasula & his son had not been proved on the record. (2) That even if the execution of the aforementioned sale-deed was held to have been proved, the house purchased by the defts did not adjoin the house in dispute. (3) That in any case, the vendees were not competent in law to improve their position after the date of the sale of the house in dispute.