MAHESH CHAND Vs. GOPI BALLABH & ORS

JUDGEMENT

(1.) The appellant-original defendant No.1 has filed the present appeal under Section 96 of CPC challenging the judgment and decree dated 10.10.90 passed by the District Judge, Tonk (hereinafter referred to as 'the trial court') in Civil Suit No. 18/79, whereby the trial court has decreed the suit of the respondent Nos. 1 and 2-plaintiffs seeking right of pre-emption over the suit property purchased by the appellant.

(2.) As per the case of the respondent Nos. 1 and 2-plaintiffs, they had one property situated at Mohalla Joshiyan, Purani Tonk, and in the same Guwadi (enclosed compound) there was a house belonging to one Damodar Lal and his son Shyam Lal as shown in the map annexed to the plaint. According to the plaintiffs, the said Damodar Lal and his sons Shyam Lal and Ram Lal sold out their property shown in the map as 'abcdef' to the defendant No.1 i.e. the appellant by executing the registered sale-deed on 15.12.78. It was the further case of the respondent No.1 and 2-plaintiffs that the plaintiffs had right of pre-emption over the property purchased by the appellant-defendant No.1, as there was a common pole (big gate) common chowk and common way being used by the plaintiffs and the other owners of the properties situated in the said Guwadi, including of the property purchased by the defendant No.1. The respondent Nos. 1 and 2-plaintiffs, therefore, had filed the suit for the enforcement of their right of pre-emption under the provisions contained in the Rajasthan Pre-emption Act, 1966 (hereinafter referred to as 'the said Act') and for seeking possession of the property purchased by the appellant-defendant No.1 vide the sale-deed dated 15.12.78.

(3.) The said suit was resisted by the appellant-defendant No.1 by filing his written statement denying the allegations and averments made in the plaint and further submitted that the map annexed to the plaint did not show the correct position of the properties belonging to the plaintiffs and of the defendant No.1 and that though the original owner Damodar Lal had asked the plaintiffs to purchase the house in question, the plaintiffs refused to purchase the same and thereafter the said Damodar Lal had sold it out to the appellant. The appellant had further amended the written statement by contending interalia that on the northern side of the house in question, there was an ancestral house of the appellant and his father, and they were also using the common way and common chowk of the said Guwadi and, therefore, the plaintiffs could not claim their exclusive right of pre-emption over the property purchased by the defendant No.1.