GAURI SHANKER Vs. MADAN MOHAN

JUDGEMENT

(1.) THIS appeal arises out of a suit for pre -emption of a house property situated in the city of Udaipur. Raghunath had two sons Surajmal and Gaurishanker. Surajmal was the elder son from his first wife, while Gaurishanker was the younger one from his second wife Smt. Bhanwaribai. Surajmal executed an agreement to sell the house in dispute in favour of defendant Madanmohan for a sum of Rs. 18,000/ - on December 14, 1968. As Surajmal did not execute a sale deed in pursuance of the aforesaid agreement to sell, Madanmohan brought a suit for specific performance of the contract against Surajmal, which was decreed by the court of Senior Civil Judge, Udaipur. Surajmal died during the pendency of that suit and in consequence of the decree for specific performance passed in the suit filed by Madanmohan, a sale -deed was executed by the Senior Civil Judge, Udaipur, in favour of Madanmohan on October 26, 1970. Gaurishanker thereupon filed a suit for pre -emption on May 18, 1971 on the allegation that he was a co -sharer as there was a joint wall between the house of Gaurishanker and the house which was subject matter of sale and the patties of both the houses were made to rest on the joint wall. Madanmohan defendant No. 1 contested the suit on the ground that a partition had taken place between the plaintiff and deceased Surajmal on November 5, 1954 and since both the plaintiff and Surajmal were living separately and were in possession of separate portions of the property, the plaintiff was not a co -sharer of the house sold by deceased Surajmal It was also denied that there was a joint wall between the two houses, but it was asserted by defendant Madanmohan that here were two separate walls. The learned Additional District Judge dismissed the plaintiff's suit for preemption. Hence this appeal has been filed in this Court.

(2.) THE first question which requires determination in this appeal is as to whether the plaintiff is a co -sharer of the property, which was subject matter of sale, and as much he has got a preferential right of purchase in respect of the said property. The plaintiff's case is that the intervening wall between the house in dispute and the plaintiff's house was a joint one between him and his brother Surajmal deceased, who sold the property in dispute to defendant No. 1 and as such he was a partner in the wall and consequently he was a co -sharer in the property sold. The defendant No 1 has pleaded that a partition has taken place between the two brothers during the life -time of Surajmal and that both brothers were in possession of their respective shares since November 5, 1944.

(3.) THE aforesaid judgment clearly goes to show that the parties were in exclusive possession of separate portions of the property left by Raghunath's wife Bhanwar Bai. The suit for possession filed by Gauri Shanker was dismissed by this Court with the observation that if Surajmal was in possession of more than his half share, then Gaurishanker could bring a suit for partition. It was on the basis of these observations made by the division bench of this Court in the aforesaid judgment that it was asserted on Behalf of the appellant Gaurishanker that the property was still joint and the plaintiff was a co -sharer. It may be observed that this Court in the earlier decision did not come to the conclusion that the parties were in joint possession of the entire property or that they were still holding possession over different apartments as co -sharers thereof. What this Court observed was that if the plaintiff thought that the property left by Smt. Bhanwar Bai was joint property then he should bring a suit for partition and not a suit for possession. However it appears from the decision of this Court dated August 18, 1954 that parties were in possession of separate portions of the house even before the earlier suit was filed in the year 1952. It is also not in dispute that even after the decision of this Court in that case, no suit for partition was ever filed by plaintiff Gauri Shanker, which fact also goes to show that the plaintiff did not consider at any time that he and Surajmal were in joint possession of the property in dispute so as to claim partition thereof. Thus, it appears that Surajmal was in exclusive possession of a portion of the house from even before the earlier suit was filed in the year 1952 and that no suit for partition was brought by Gaurishanker even after the decision of the earlier case by this Court on August 18, 1954 The present suit for preemption was filed on May 18, 1971, after a sale -deed was executed by the Senior Civil Juge, Udaipur on October 26, 1970, in pursuance of the decree for specific performance. It is, therefore, fully established that Surajmal was in separate possession of a portion of the house 'Chhotamakan' in his own right and not as a co -sharer.