MANGTI RAM Vs. ONKAR SAHAI

JUDGEMENT

(1.) - The only contention, which requires to be decided in this appeal under Section 96 of the Code of Civil Procedure ("the Code"), is as to whether the learned trial court rightly decided Issue No. 6, by holding that the plaintiffs appellants were estopped from challenging the sale, made by the defendant-respondent No. 6, Brijlal, in favour of the defendants- respondents Nos. 1 to 5, by claiming the right of pre-emption, to purchase the property in dispute.

(2.) THE brief facts are as under: - THE property in dispute, along with the property, belonging to the appellants-plaintiffs, formed part of the joint property, earlier owned by Shri Sawal Das, the father and the predecessor- in-interest of the defendant-respondent No. 6, Brijlal, and Shri Gaddar Mal, the predecessor-in-interest of the appellants-plaintiffs. Sawar Das aind Gaddar Mal partitioned the property in dispute, and the property in dispute came to the share of Sawal Das, whereas, the other property came to the share of Gaddar Mal. After the death of Sawal Das, the property in dispute was inherited by the defendant-respondent No. 6, and after the death of Gaddar Mal, the property of his share was inherited by the plaintiffs-appellants. Since Brijlal, the defendant Np. 6 was negotiating to sell the property in favour of Shrikishan, the father of the respondents Nos. 1 to 5, the plaintiffs filed a suit, stating that Brijlal had no right to sell their share in the property, and that he was negotiating to sell not only the property in dispute, but also the property of the share of the plaintiffs, with a view to harass the plaintiffs, who had the right of pre- emption in respect of the share of Brijlal as well. Along with the plaint, an application under Order 39, Rules 1 and 2 of the Code, was also filed by the plaintiffs, for grant of a temporary injunction, restraining Brijlal, from disposing of any property, during the pendency of the suit. THE suit was contested by Brijlal, but, thereafter, a compromise had been arrived at between the parties. After the compromise had been entered into between the parties, and the earlier suit, filed by the plaintiffs, had been disposed of vide Exhibit A/2, the defendant-respondent No. 6, Brijlal, sold the property in dispute, i. e. , the share that was inherited by him after the death of his father, to the sons of Shrikishan; Shrikishan having died by that time. THE plaintiffs instituted the suit, out of which, the present appeal has arisen, claiming to have the right of pre-emption therein, and contending that no notice was given by the defendant-respondent No. 6, to them, before selling the property to the defendants-respondents Nos. 1 to 5. THE suit was contested on the ground, inter alia, that the plaintiffs were estopped from challenging the sale on the ground that they had consented to the defendant-respondent No. 6, selling the property to some third party in the earlier suit. After recording the evidence produced by the parties and hearing their learned counsel, the learned trial court, vide the impugned judgment and decree dated 18. 12. 1982, dismissed the suit, filed by the plaintiffs, on the ground that they were estopped from challenging the sale and 'claiming the right of pre- emption in the property in dispute. Hence, this appeal by the plaintiffs.

(3.) THE appeal is without any merit, and is dismissed, with costs. .