RADHA DEVI Vs. GODAWARI DEVI

JUDGEMENT

(1.) THIS is an appeal under Section 18 of the Rajasthan High Court Ordinance against the judgment dated 24th Aug. 1987 passed by learned Single Judge in Civil First Appeal No. 78 of 1979 reversing the judgment and decree dated 25th July 1979 of the District and Sessions Judge, Jaipur City.

(2.) BRIEF facts of the case-are that Ram Gopal and Sitaram were real brothers. Their father was Kalyan Bux. Ram Gopal died in 1969 leaving behind 3 daughters and two sons. Sita Ram has one son, namely, Govind Behari, respondent No. 6. The case of the plaintiffs is that one house was purchased by Ram Gopal and Sitaram on 30. 1. 1953. On the death of Ram Gopal the plaintiffs and other sons and daughters became the joint owners of the property with Govind Behari and Sita Ram. They alleged that in the event of partition in the joint family property, each one of the two branches, aforesaid, would have been entitled to the half share but the defendant nos. 1 and 2 sold away half portion of the house in dispute to Smt. Godawari Devi, defendant no. 3 on 15. 7. 1975 for a consideration of Rs. 21,999 and handed over possession of their share to her. The plaintiffs, thereafter, brought the suit for pre-emption claiming that by virtue of being co sharers of the joint family property, they had the prior right of purchase under the provisions of Rajasthan Pre-emption Act. According to the plaintiffs, the sale made by defendant nos. 1 and 2 to the defendant no. 3 was without any notice to them. Consequently, plaintiffs, who are the heirs and legal representatives of Ram Gopal brought the suit claiming that they being the co shares along with defendant nos. 4 and 5, were entitled to the right, title and interest as well as possession conveyed by defendant nos. 1 and 2 to the defendant no. 3 through the sale deed dated 15th July 1975. In view of their right of pre emption, they claimed that the sale deed executed in favour of defendant no. 3 was void and, thus, liable to be set aside.

(3.) IT is not disputed in this case that Ram Gopal and Sitaram were the co-sharers of the house in question. On the plea of partition, trial court framed issue no. l and after discussion of the evidence, held that the house had not been partitioned. We have also gone through the record and from Exb. A-2, which is a sale deed executed in favour of defendant no. 3 by defendant nos. 1 and 2 we find that it has been clearly recited that the disputed house was in the joint ownership and occupation of Sita Ram and Ram Gopal. At page 3 of the document, the following words are important: - "is SAMPATTI PAR RAM GOPAL WA SITARAM DONO BHAI BA HASIAT BARABAR MALIK WA KABIJ RAHEN. " From the rest of the rectial of this document, the trial court, in our opinion, rightly concluded that the partition in between the two brothers, aforesaid, not been established. Since this was not the controversy raised and decided either before the learned Single Judge or before we do not consider it necessary to deal with that matter any further.