SHYAMOL ROY Vs. HEERA BHAI

JUDGEMENT

(1.) Heard the parties and perused the record. By way of this writ petition filed under Articles 226 and 227 of the Constitution of India, the petitioner has assailed the order dated 5.7.2008 of Additional District Judge No. 4, Jaipur City. Jaipur. in Civil Suit No. 36/2007. whereby respondents' application under Order 7, Rule 11 of the Code of Civil Procedure (hereafter referred to as 'the Code') had been allowed and the petitioner's suit had been dismissed on account of having no cause of action and also on account of it being against the provisions of law.

(2.) Briefly stated, facts of the case relevant for the purpose of disposal of this writ petition, are that the petitioner had flied a suit for pre-emption against the respondents stating therein that 1/4th of house No. 520 situated in Shankar Gujar Gall, hokri Ramchandraji. was purchased by him from its owner by way of registered sale-deed on 13.3.1992 and since then he has been in possession thereof as the owner. The 3/4th portion of the said house had been purchased by respondent Nos. 1 to 3 from the then owner also, by way of registered sale-deed on 7.8.1991, and since then they were in possession thereof. However, respondent Nos. 1 to 3 gifted the said 3/4th portion of the house, to respondent No. 4.

(3.) The petitioner's contention was that after purchasing this 3/4th portion, respondents No. 1 to 3 had orally agreed to sell it him for a sum of Rs. 5,70,000/- towards which the petitioner paid a sum of Rs. 1100/- as advance. Once the respondents orally agreed to sell their 3/4th portion of the house in dispute, and accepted the advance amount, they could not have gifted it to respondent No. 4. By filing his suit, the petitioner had prayed for right of pre-emption and injunction and also sought cancellation of the gift-deed in favour of respondent No. 4.