ROOPI BAI Vs. MAHAVEER

JUDGEMENT

(1.) The Appeal No. 96 of 1992 is defendant's appeal arising out of a preliminary decree for pre-emption of the suit property passed in favour of respondents Nos. 1 and 2 by the learned Additional District Judge, No. 2, Udaipur in Civil Suit No. 126 of 1985.

(2.) Mahaveer son of Bhanwarlal and Sunder Lal son of Bhanwarlal, two brothers, filed a suit for pre-emption of the property, sold by defendant No. 2 (respondent No. 3) Vijay Singh to appellant-defendant No. 1 Smt. Roopi Bai, claiming their right to preempt the sale of property. The case of the plaintiff's is that the property in question is a part of a building originally owned by Pratap Singh Talesra, Vijay Singh Talesra and Chander Singh Talesra between whom the property was partitioned. The plaintiff-Mahaveer had purchased a part of share of Pratap Singh on 12/02/1982 and Sunder Lal another part of the share of Pratap Singh through another registered sale deed on 12/02/1982. At the time, they purchased the said shares of Pratap Singh, the properties had certain joint amenities which was being used by the owners and occupants of other parts of the property. The other owners of the property at the time of sale made in favour of the plaintiffs were stated to be Smt. Ajab Kanwar, Smt. Sohini Devi who purchased the share of Chander Singh and defendant No. 2 Vijay Singh. Such amenities continued to be joint between the plaintiffs parts of buildings and property transferred by Vijay Singh. On 1/10/1984, defendant No. 2 Vijay Singh sold his share of the house in favour of defendant No. 1 Smt. Roopi Bai through a registered sale deed for Rs. 45,000.00. It was alleged that in fact only Rs. 35,000/ - passed as consideration. The plaintiffs claimed that they have a right to pre-empt on the ground that a joint stair-case, entrance and other amenities attached to their properties are common to the property sold by Vijay Singh in favour of Smt. Roopi Bai. The plaintiffs further averred that before executing the sale in favour of defendant No. 1, no notice of such sale was given to them and they came to know about the sale in favour of defendant No. 1 by defendant No. 2 only after the sale deed was registered and when they came to know about it, they gave separate notices to the defendant No. 1 demanding enforcement of their right of pre-emption, which was in the first instance returned unserved. Thereafter when the same was again sent on 12/04/1985, it was delivered to the defendant No. 1/04/1985 but the defendant did not agree to the demand and denied the plaintiffs right. Hence the suit has been filed claiming that decree for pre-emption in favour of plaintiffs may be passed by substituting the names of plaintiffs as transferees of the property in question in place of Sint. Roopi Bai on payment of Rs.45,000.00 or any other sum as the Court deems.fit to be the true consideration and the possession of property may be delivered to the plaintiffs. The suit was filed on 25/09/1985.

(3.) Defendant No. 1 only filed written statement. He denied the plaint allegations. It was pleaded that before the property in question was sold to defendant No. 1, the plaintiffs were asked to purchase the property by the vendor and it was only when they refused, the property has been sold to the defendant No. 1. It was also pleaded that the property was purchased by defendant No. 1 at the instance of the plaintiffs and plaintiffs were active participants in executing the sale deed and, therefore, they are now estopped from exercising the right of pre-emption in their favour. The defendants after they have purchased the property carried out maintenance, repairs and improvements in the property in the presence and with the consent of the plaintiffs and have spent around Rupees Five Thousand for that purpose. For this reason also, the plaintiffs are now estopped from exercising their right of preemption.