RAM LAL Vs. NIRANJAN LAL

JUDGEMENT

(1.) THIS second appeal under Section 100 CPC impugns the judgment and decree dated 12.11.2009, passed by the Additional District and Sessions Judge No.1, Bayana, District Bharatpur, upholding the judgment and decree dated 15.09.1999, passed by the Civil Judge, (Sr. Div.), Bayana, District Bharatpur, in suit No.85/1999, whereby the original plaintiff's (since dead and represented by the appellants before this Court) suit for preemption was dismissed.

(2.) THE case set up by the original plaintiff in the suit before the trial court was that a part of Haveli popularly known as Madhai was sold by the defendant -respondent No.1, Niranjan Lal (since dead and represented by his LRs before this Court) to the defendant -respondent No.2, Mahendra Kumar (hereinafter 'the defendant No.2') on 26.11.1983 in contravention of the plaintiff's rights under the Rajasthan Preemption Act, 1966 (hereinafter 'the Act of 1966'). It was stated that the sale dated 26.11.1983 was carried out in spite of the notice dated 21.11.1983 and consequently a decree be passed in terms that on receipt of Rs.12,500/ - from the plaintiff, the defendant No.2, Mahendra Kumar, handover the possession of the suit property to the plaintiff. On receipt on notice of the suit, the defendant No.1, Niranjan Lal admitted to the factum of the execution of the sale -deed dated 26.11.1983 however stating that the sale had actually been made in favour of Khubi Ram and the name of Mahendra Kumar had wrongly been entered in the deed which was however rectified under registered modification deed dated 11.01.1984. It was submitted that the necessary rectification in the sale -deed having been carried out establishing the sale to Khubi Ram, no case was at all made out more so in view of Khubi Ram not having been impleaded in spite of him being a necessary party. It was further stated that Khubi Ram was a co -sharer in the Haveli in issue while in fact the plaintiff was not and therefore he did not have any right of preemption. It was also pointed out that even otherwise Mahendra Kumar in whose name the sale -deed was first erroneously registered was not a stranger to be in the teeth of the operating preemption law inasmuch as he was the grand son of Khubi Ram admittedly a co -sharer. It was denied that any notice dated 21.11.1983 had been sent at the instance of the plaintiff or received. It was stated that in the facts of the case Khubi Ram was a necessary party to the suit and not having been impleaded as a party, the suit was liable to be dismissed on this ground alone. Mahendra Kumar, defendant No.2 in the suit, in his written statement fundamentally supported the case set up in defence by the defendant No.1. It was reiterated that the sale dated 26.11.1983 in fact had been made in favour of Khubi Ram, a co -sharer of the Haveli in issue. It was also emphasised that the defendant No.2, Mahendra Kumar, as the grand son of Khubi Ram was not a stranger. Further that the sale -deed 26.11.1983 in the first instance had erroneously been executed in his favour and the error had subsequently been rectified by a registered modification deed dated 11.01.1984. It was stated that the property purchased was immediately adjoining to the share of Khubi Ram in the Haveli in issue in respect of which he himself had a right of preemption. On the basis of the pleadings of the parties, the learned trial court framed seven issues which are as under : .........[vernacular ommited text]...........

(3.) MR . G.K. Garg, Sr. Advocate with Mr. Yash Sharma, appearing for the plaintiff, has submitted that the judgments of the courts below are liable to be quashed and set aside on the ground of the provisions of Section 6(4) of the Act of 1966 not having been taken into consideration. It was submitted that assuming that the sale of the suit property was made to Khubi Ram admittedly a co -sharer, yet the fact remained that the plaintiff was a co -sharer of the Haveli in dispute and in this view of the matter, the learned trial court ought to have resorted to the mandate of Section 6(4) of the Act of 1966 and adjudicated the rights of the plaintiff vis a vis Khubi Ram with reference to Section 6(4)(a) and (b) of the Act of 1966. Counsel has further submitted that the conclusions of the courts below with regard to the plaintiff not having been able to prove his co -ownership of the disputed latrine, Chowk, Corridor, staircase and exit are perverse to the evidence on record. Heard the counsel for the plaintiff and perused the impugned judgments and decrees of the courts below.