SHANTI DEVI Vs. RAM NARAIN

JUDGEMENT

(1.) This Special Appeal, preferred by defendant appellants, arises out of the judgment and decree dated November 9, 1984 of the learned single Judge whereby Civil Regular First Appeal of the plaintiff respondents was allowed and suit instituted by them to enforce the right of pe-emption was decreed.

(2.) Contextual facts depict that suit for pre-emption was filed on October 3, 1960 by plaintiff respondents in the Court of Senior Civil Judge No. 1 Jaipur City. The defendant No. 1 in the written statement denied the existence of the custom of preemption and in the alternative contended that the plaintiff was estopped from claiming pre-emption as he never expressed his wish to purchase the property when the sale in favour of the defendant was brought to their knowledge nor did they make the necessary Talabs which were indispensable for them to perform for claiming the right of preemption. Learned Senior Civil Judge considered the question of Talabs under two parts (1) whether making of the Talabs was necessary? and (2) whether the Talabs were made by the plaintiffs ? After considering th'e submissions learned Senior Civil Judge held that the customs of pre-emption as prevalent in the City of Jaipur being co-extensive with Mohammedan law, the making of the Talabs was indispensable before assertion of such a right. Since the plaintiff did not make the necessary Talabs which were indispensable for the assertion of the right of pre-emption, the suit was ordered to be dismissed on April 21, 1964. Against the said judgment and decree of the learned Senior Civil Judge, the plaintiffs preferred SB Civil Regular First Appeal No. 56/1964. Learned single Judge after framing two issues sent the case back. The issues were ultimately decided against the defendant by learned Additional District Judge Tonk Camp Jaipur vide judgment dated September 30, 1972. The defendant assailed the decision by filing objections. Since similar matter was pending for decision before the Division Bench, the appeal could not be heard.

(3.) After the decision rendered by the Division Bench in Radha Ballabh Haldiya v. Pusha Lai Agarwal (AIR 1986 Raj 88) whereby making of Talab was held unnecessary, learned single Judge vide judgment and decree dated November 9, 1984 and set aside the findings of Senior Civil Judge and decreed the suit instituted by the plaintiffs.