BALA BAKSH Vs. NARAIN

JUDGEMENT

(1.) THIS appeal arises out of a suit for pre-emption filed by Narain plaintiff-respondent against the appellant Balabaksh. The property, which was sought to be pre-empted, is situated in Rajgarh in Alwar District. It consists of plots Nos. 1862 (1-1/4 bigha in area) and 1863 (3/4 of a bigha in area), situated in khewat No. 96 of village Rajgarh. THIS property originally stood in the name of Gangabaksh, but it was transferred by him to the defendant-appellant Balabaksh, vide mutation No. 565 dated 25th March, 1941. The plaintiff, Narain, brought the suit for pre-emption on the 17th of May, 1941, on the allegation that the plaintiff had his own property contiguous to the property in suit, and that the vendee Balabaksh had no property near the said property. It was also alleged that the property originally belonged to one Kajora, who was a collateral of the plaintiff, and that while the plaintiff was an agriculturist by profession, the vendee was not. It was also alleged that although the ostensible consideration was Rs. 500/-, yet the property was in fact sold tor Rs. 300/- only. The defendant vendee Balabaksh also contested the suit on the ground that Kajora had nothing to do with the property, and that the plaintiffs property, on the basis of which he had claimed preemption, was not contiguous to the property in suit, but some land belonging to the Government lay between the two. It was also pleaded that the real consideration was Rs. 500/- and not Rs. 300/ -.

(2.) THE suit was dismissed by the Munsif, Rajgarh, on the 25th of October, 1943, on the ground that the plaintiff had no right of preemption under sect. 129 of the Alwar State Revenue Code, and that there was no other law obtaining in Alwar according to which the right of preemption of the property in question could be claimed. THE plaintiff went in appeal, but his appeal was also dismissed. He preferred a second appeal, where he was allowed to amend the plaint, and the case was sent back to the first court for hearing and disposal. THE suit was, however, again dismissed by the Munsif on the 19th of March, 1946. THE plaintiff again went in appeal against the decree of the first court to the court of District Judge, Alwar, In the meanwhile the Alwar State Pre-emption Act (Act No. VII of 1946) came into force on the 28th of June, 1946 which allowed right of pre-emption in certain cases. No notice of this Act was taken in appeal, which was dismissed by the District Judge on the 2nd of July, 1946. THE plaintiff preferred a second appeal in the High Court at Alwar, and raised a point that section 31 (1) of the Alwar State Pre-emption Act (hereinafter to be referred to as the Pre-emption Act) applied to the case, and the case be remanded to the trial court with a view to restore it to file and decide it according to the above Act. It was held by the High Court on the 14th of August, 1946, that sec. 31 (1) of the Pre-emption Act applied and without deciding the appeal on merits, it remanded the case to the trial court with a view to restore it to file and decide according to the Pre-emption Act on the request of the counsel for the appellant. THE learned Munsif proceeded to decide the case in the light of the provisions of the Pre-emption Act, and held that the plaintiff was the owner of the estate within the meaning of sec. 15, clause (c), thirdly. He held that the defendant vendee was only a tenant with rights of occupancy, and, therefore, the plaintiff had a preferential right of pre-emption as against the defendant vendee. He consequently decreed the suit,, but held that the consideration was actually Rs. 500/ -. THE defendant vendee Balabaksh went in appeal, but the learned Additional District Judge, Alwar, upheld the decree of the first court, and dismissed the appeal. Balabaksh, the defendant vendee, has come in second appeal.