DHANRAJ Vs. PRAKASH KUMAR

JUDGEMENT

(1.) This appeal has been filed by the plaintiff, against the judgment and decree of learned Additional District Judge. Sirohi dated 16.9.83, dismissing the appellant's suit for preemption.

(2.) The facts of the case are, that on 5.11.77, the appellant filed a suit for preemption, alleging inter-alia, that he is the son of defendant No. 2, and that he owns a house marked by figure "A B C D E F G H" in the site plan, annexed with the plaint, which house he received from his deceased father in the Samvat year 2019, and vide document dated 1.7.70, he released all his rights in all other properties of his father. It was then alleged, that the defendant No. 1 purchased the 'plot house', mentioned In pare 4 of the plaint, from the defendant No. 2 on 25.11.76 vide registered sale deed for a price of Rs. 15,000.00, the boundaries of the 'plot house' have been given in pare 4 of the plaint. Then it was alleged that the entire property, i.e. the house of the plaintiff, and 'house plot' sold on 25.11.76, were covered by two Pattas dated 9.9.22 and 1.4.45, and thus, the property was joint, and the plaintiff is a co-sharer in the property, with the result, that the defendant No. 2 had no right to sell the property to anybody else. It was also alleged that the property has been sold without notice to the plaintiff, the plaintiff gave a registered notice on 13.12.76, but it was not replied by defendant No. 1, despite the plaintiff being co-sharer. the defendant No. 1 did not re-transfer the property to the plaintiff. Then in pare 6, it has been pleaded, that the wall situated in between the plaintiff's house, and the disputed 'house plot', being "A 6" is joint wall, which contains 7 Alaas, and thus the plaintiff is entitled to preempt the sale.

(3.) The defendant No. 1 contested the suit, and pleaded in pare 2, that the property purchased by him is a plot of land, whereon some Kaccha Jhumpa covered by earthen tiles is there. Then, it was contended that the property was of course purchased by the defendant No. 1, out was purchased for a price of Rs. 32,500.00, and the sale deed was executed for a price of Rs. 15,000.00 only. It was also contended that the wall in question is not joint, inasmuch as, the wall does not fall in the part of the plot purchased by the defendant No. 1, and therefore, is not a joint wall, rather the wail belongs exclusively to the plaintiff. It was also pleaded that according to the site plan produced by the plaintiff, the wall has been shown to be his 1 exclusive one. and therefore, it is not open to the plaintiff to contend the wall to be joint. Various other pleadings were also taken.