(1.) This is defendants' second appeal arising out of a suit for pre-emption. The subject matter of the suit out of which the present second appeal arises is a portion described in para 3 of the plaint, of a house described in para 1 of the plaint situated in Chaukri-pirani-Basti. Jatka-koa ka Rasta, Jaipur. Smt. Phool Kanwar appellant No. 1 the vendor sold her portion in the house to the appellants Gopal and Smt. Durga Devi appellants Nos. 1 and 2 respectively, the vendees, for a consideration of Rs. 2,000 on June 13. 1960 and the sale deed was registered on August 5. 1960.
(2.) Hari Dutt Sharma, the respondent instituted the pre-emption suit on July 3, 1961 in the court of Munsif East, Jaipur against the appellants in which the claim for pre-emption was based on first degree i.e. Shafe-i-Sharik because the building in which the house of the respondent and the appellants were situated had ioint staircase, Chowk. Pol and latrine.
(3.) The suit was contested by the vendor and the vendees namely the appellants, on the ground that the appellants had offered the suit portion of the house to the respondent before the sale and after the sale. The offer was made to the respondent to purchase the house for Rs. 2,000/-, but the respondent declined the offer saying that the value of the suit portion of the house only ranged from Rs. 500 to 700/-. Thus the respondent waived his right to purchase the suit protion of the house and as such, has lost his right of preemption. A case also set up in the written statement by the appellants that in the former Jaipur State, the right of pre-emption was co-extensive with the Mahomedan law of pre-emption and, therefore, the respondent had failed to aver and prove the existence of a custom of pre-emption in the Jaipur City as well as having failed to aver and prove that the talabs were made by the respondent, the suit for pre-emption cannot be decreed. It was lastly averred that during the pendency of the suit for pre-emption, the vendees have improved their position by purchasing Chandani adjoining the suit portion of the house and, therefore, they have also become co-sharer and have thus become pre-emptor of the same class as the respondent. The suit for pre-emption, therefore, could not have been decreed.