PARBHATI Vs. BHONRELAL

JUDGEMENT

(1.) THIS is a second appeal in a suit for pre-emption. The respondent Bhonrelal sued the appellant Parbhati, an assignee from the vendee Ghasi, who had purchased a portion of house property by sale deed dated 10-6-1943, from Gyasi Ram. The respondent alleged that the premises sold were situated in a Bakhal, that is, a house, in which the plaintiff owned the rest of the property. According to the plaint, the vendor was a joint owner of the poli and chauk, and these joint rights had also been sold by the aforesaid sale deed. The consideration was stated to be Rs. 117/ -. It was stated that Ghasi had transferred the property to Parbhati by a sale deed dated 17-8-1943, for Rs. 200/ -. The situation of the property was said to be in village Mojpur, where the plaintiff, it was alleged, had a right of pre-emption, both on account of jointness in the poli and chauk, as also because he was owner of the adjoining property. The defendants filed separate written statements. Gyasi Ram admitted that the plaintiff had a right of pre-emption, but stated that he had really sold the property to Parbhati, but entered the name of Ghasi at the request of Parbhati. Parbhati pleaded that the entire house, excepting the portion in dispute belonged to him, and the plaintiff had by some fraud obtained its sale from his brother's son, and that in this way he had a superior right of pre-emption, and, therefore, the plaintiff was not entitled to succeed. It was pleaded that Rs. 200/- had been paid for the purchase of the property, and Ghasi's name in the first sale deed had been only inserted benami, and the transaction was regularised by obtaining the second sale. Ghasi's defence was the same as that of Parbhati. Only one issue was framed by the trial court, namely, whether the sale of the property in dispute was made for Rs. 117/-, as mentioned in the first sale deed, or for Rs. 200/- as mentioned in the second sale deed. The court held that the first sale was for Rs. 117/-, and it gave a right of pre-emption to the plaintiff. The trial court accordingly decreed the suit on deposit of Rs. 117/- within one month. On appeal, the learned District Judge was of opinion that two more issues should be framed on the pleadings raised by the defendants, viz: 1. Whether the suit was within time? and 2. Whether the plaintiff had a superior right of pre-emption as against the vendee Parbhati? It may be pointed out that the law of pre-emption was codified in Alwar by the Alwar State Pre-emption Act, 1946 (Act No. 7 of 1946), and the plaintiff had relied upon Section 31 (2) of the Act for bringing the suit within limitation. That provision was as follows: " Suits relating to pre-emption which were not filed after the 30th day of April 1942 shall be entertained if instituted within three months next after the passing of this Act in spite of the lapse of the ordinary period of limitation. " After remand, the plaintiff sought an amendment of the plaint by which Mojpur was stated to be a town instead of a village, which was mentioned in the original plaint. To this amendment the defendants had no objection to make, and the court amenaea tne plaint accordingly. After further evidence, the learned Munsif held that the suit was within time, and the plaintiff had a superior right of pre-emption. The suit was accordingly decreed again on deposit of Rs. 117/-by 5-1-1950, after deducting the costs of the suit. An appeal to the District Judge was unsuccessful. Hence this second appeal.

(2.) IT was argued by learned counsel for the appellant that according to the Alwar State Pre-emption Act there was a difference in the accrual of the right of pre-emption according as the property was situated in a village or in a town. The plaintiff's right had been accepted by the lower court on the ground that he was the owner of the adjoining property, and that right was only recognised in case of sale of urban immovable property under Section 16 of the Act. "urban immovable property" was defined in Section 3 as follows: " Immovable property within the limits of a town, other than agricultural land. For the purposes of this Act a specified place shall be deemed to be a town (a) if so declared by His Highness' Government by notification in the State Gazette, or (b) if so found by the courts. " IT was contended by learned counsel that the plaintiff had originally mentioned Mojpur as a village, and although he had subsequently made an amendment so as to call it a town, it had not been proved to be a town, and, therefore, the plaintiff had no right of pre-emption.