RAMJI LAL Vs. OM PRAKASH

JUDGEMENT

(1.) PLAINTIFF-appellants have preferred this second appeal under section 100 of the Code of Civil Procedure against the judgment and decree dated 21st of April, 1981 passed by the Additional District and Sessions Judge No. 2, Dholpur in Civil Appeal No. 3/80, whereby he allowed the appeal of the defendant No. 1 Om Prakash and set aside the judgment and decree dated 20th of March, 1972 passed by the Additional Civil Judge No. 1, Bharatpur, at Dholpur, in Civil Suit No. 26/71 (380/66), whereby the lower court decreed the suit of the plaintiffs for pre-emption under section 11 of the Rajasthan Pre-Emption Act, 1966. This court admitted this second appeal and formulated the following substantial question of law on 24. 9. 1982 : " Whether the document Exhibit A-1 dated 15. 12. 1959, whereby Badri Prasad and Ramjilal renders purported to sell some immovable property to Om Prakash as vendee, can be relied on by the vendee to prove his status as a co-sharer in the immovable property, which is the subject matter of this suit for pre-emption. "

(2.) BRIEFLY stated the facts of the second appeal are that plaintiffs Badri Prasad and Ramjilal filed a suit for pre-emption in respect of the portion of property in dispute under Section 11 of the Rajasthan Pre-Emption Act, 1966 against the defendants Om Prakash and Bhagwati Prasad. It was pleaded that the plaintiffs have a right of pre-emption in respect of the portion of the property, which has been sold by the defendant No. 2 in favour of the defendant No. 1 through registered sale-deed dated 14. 3. 1966 for a consideration of Rs. 500/ -. In the suit it was prayed that a decree of pre-emption be passed in favour of the plaintiffs and on payment of Rs. 500/- by the plaintiffs, a decree for possession be passed in favour of the plaintiffs and against the defendant No. 1.

(3.) LEARNED counsel for the appellants contended that the first appellate court has committed a serious illegality in setting aside the judgment of the lower court on the ground that Om Prakash had adverse possession over the property in dispute for more than 12 years from 15. 12. 1959 till 15. 12. 1971 whereas the plaintiffs had already filed their suit for pre-emption in court in the year 1966, therefore, the possession after the year 1966 could not have been considered as adverse possession in favour of Om Prakash, therefore, the learned first appellate court committed an illegality in allowing the appeal of the defendant No. 1 Om Prakash and the same is liable to be set aside and the judgment of the lower court should be restored.