RADHEY SHYAM Vs. PREM KANTA

JUDGEMENT

(1.) THIS is a second appeal by the plaintiff in a suit for pre-emption.

(2.) BRIEF facts leading to this appeal are that the plaintiff filed a suit against the defendant No. 1 Smt. Prem Kanta, the vendee and Shri Abdul Gafoor, defendant No. 2, vendor in respect of a house sold on 23rd December, 1964 for Rs. 1,999/ -. It was alleged that towards the West and North of the portions sold, is the portion of the plaintiff and therefore, according to the custom prevailing in Jaipur City, which has been well recognised by the Judicial Courts, the plaintiff was entitled to the right of preemption being a co-sharer of the property. The defendant No. 1, Smt. Prem Kanta, admitted the purchase of the property, but denied that the plaintiff was a co-sharer. She further pleaded that the house of the plaintiff, if any, was adjoining to the disputed property and the right of pre-emption claimed on the ground of vicinage has been held to be unconstitutional. The defendant No. 2, Abdul Gafoor also filed a written statement in which he admitted the right of the plaintiff to claim pre-emption but he took the plea that the plaintiff had been told to purchase the property before the sale, but he refused to purchase the same and thereafter he had sold the property to defendant No. 1. On the basis of the aforesaid pleadings of the parties, the trial Court framed the following issues: 1. Whether the plaintiff being co-sharer of disputed premises, has right of pre-emption of the first degree? 2. Whether defendant No. 2 offered plaintiff before sale but plaintiff refused to purchase? 3. Whether defendant No. 1 has not purchased the suit premises for Rs. 1999/- but has paid only Rs. 909/-? 4. Whether the plaint is liable to be rejected as no cause of action is shown? 5. Relief?

(3.) LEARNED counsel for the respondent argued that in the plaint though it was mentioned that the plaintiff was claiming the right of pre emption of the first degree as being a co-sharer, but it was not mentioned at all that any property of the plaintiff and the property sold was a joint one, on the contrary in the description of the boundaries of the property sold it was mentioned that on the western and northern side of the second storey the house of Radhey Shyamji Agarwal were 'charpatwan'. It is further argued that in the statement given by the plaintiff he clearly stated that in Ex. 1, the wall of 'a' and 'b' is 'charpatwan'. In the cross examination also he admitted that the wall 'a' and 'b' has been written as Charpetwan in the title deed of his own house also. It is thus contended that it was the duty of the plaintiff to have made an allegation in the plaint as to how and in what manner he was claiming a right of co-sharer in the property sold and in the absence of such pleadings, the evidence of other witnesses of the plaintiff are of no avail to prove that the walls 'a' and 'b' was a joint wall and not 'charpatwan'. In civil cases it was the duty of the plaintiff to come out with a clear and definite case regarding the mode and manner in which the plaintiff was asserting his right of pre-emption and in the absence of such pleadings, no amount of evidence led during the trial can be looked into. It was next contended that any admission made by the defendant No. 2 in the written statement was not at all binding on the defendant-respondent No. 1, because such admission has not been made during the continuance of interest in the property and has been made after the interest of the defendant No. 2 had come to an end in the property sold. Admission made by a vendor in favour of third party is not binding on the vendee, if made subsequent to the sale Reliance is placed on Maung Aung vs. Maung Shwa Lin (1 ). Reliance in this regard is also placed on Harihar Rajguru Mahapatra vs. Nabakishore Rajguru Mahapatra (2) Reliance is also placed on the following observations in Gava Ram vs. Mst Hulsi (3 ). "for a party who comes on the ground of easement, it is necessary that he should state in the pleadings that there exists a right of easement in favour of the party claiming it and it should further be shown as to in what manner the right of easement has been acquired. If it is a right by prescription, it should be clearly stated. If it is an easement of necessity, it should be clearly mentioned. . . . . . . . . . . . . . " "in civil cases, it is the duty of the parties themselves to come to court with a clear case and to establish their case by evidence. It is not for the courts either to make out a case for the plaintiff or to allow them opportunity to produce evidence which on the pleadings they are not entitle to produce. "