SHANTI LAL Vs. ROSHAN LAL

JUDGEMENT

(1.) THIS second appeal has been preferred against the judgment of the Addl. District Judge, Udaipur dated 4 -4 -1975, by which he set aside the judgment and decree passed by the Additional Civil Judge, Udaipur dated 14 -4 -1966.

(2.) THE appellants filed a suit for pre -emption with regard to one Ora and part of Patsal which have been shown as 'kha' and 'Gha' in the map attached with the plaint. According to the map submitted with the plaint the portion shown in yellow colour belongs to defendant Roshan Lal and on the North of this house the Ora 'Kha' exists and part of Patsal 'Gha' have been shown in red colour. Beyond this Ora and Patsal there is house of the plaintiff which has been shown in light pink colour. It is not disputed that the parties are co -sharers in the property in question. The Ora 'Kha' and part of Patsal 'Gha' were sold by Dayal Singh defendant No. 2 to Roshan Lal defendant No. 1 on 29 -8 -1961 for a sum of Rs. 500/ -. This disputed property is situated at Bapnoki Pole in city of Udaipur. The disputed property was in a dilapidated condition and the plaintiff could not have any knowledge of the said sale till they were informed on 9 -10 -61 by one Chainaram. The plaintiffs informed both the defendants on the same day by telegram expressing that they had a right of pre -emption to this property and would like to purchase the property after paying Rs. 500/ - and also willing to pay the expenses incurred in connection with sale. The plaintiffs also offered this amount to the defendant Roshan Lal on 10 -10 -1961 but he refused to accept the money and re -transfer the property in the name of plaintiffs. The plaintiffs are members of the joint Hindu Family and Shanti Lal purchased the upper storey of the disputed Patsal from defendant No. 2 Dayal Singh. It was also alleged that the plaintiffs have purchased one Ora in the north of the disputed Ora 'Kha' which has been shown in the map attached with the plaint as 'Ka' from Shanker Lal. The Patsal infront of this Ora in common property of Shanker Lal and Dayal Singh and thus they have a preferential right of pre -emption. It was also alleged that the upper storey of the disputed Ora belong to Bakhtawarlal plaintiff. This upper storey has fallen down and was not in existence when the suit was filed but still the plaintiffs have a right of pre -emption through it The portion of the Patsal which is alleged to have been sold by Dayal Singh to Roshal Lal defendant No. 1 is their joint property and Dayal Singh alone has no right to sell it. In this way according to the plaintiffs they are shafi -e -khalit or shafi -e -jar. It was also prayed that if in case the Court comes to the conclusion that the plaintiff have no preferential right of pre -emption over the suit property then certain recitation in the sale -deed which are wrong and adversely affect their right should be deleted from the sale -deed.

(3.) ON the pleadings of the parties the trial Court framed 13 issues. After recording evidence of both the parties and hearing them, the learned Addl. Civil Judge decreed the plaintiffs suit for pre -emption with regard to disputed property. Aggrieved by this judgment an appeal was preferred by Roshan Lal which was disposed of by the Addl. District Judge, Udaipur vide his judgment dt. 4 -4 -1975. The learned first appellate Court accepted the appeal and set aside the judgment and decree granted by the trial Court and dismissed the plaintiff's suit.