BABULAL Vs. MADADEEN

JUDGEMENT

(1.) This case is having a chequred history. Suit was instituted for the pre-emption in the year 1967. During the pendency of the suit the permission was granted to construct the building to the present petitioner on the condition that in case the suit is decreed the defendant present petitioner will remove the construction. Defendant petitioner also gave an under-taking before the Court that he should be permitted to construct and in case the decree is passed in favour of the present non-petitioner he shall remove the construction so made. Mr. Lodha counsel for the petitioner submits that the construction has been raised by the present petitioner during the pendency of the suit and his client will suffer irreparable loss. Undertaking given by the parties will have to be strictly complied with otherwise people will lose faith in judicial system. Mr. Lodha cannot agitate this point now in the execution particularly when a decree has been passed by this Court and the review petition has also been rejected by this Court on 10-1-86.

(2.) Mr. Lodha has first of all submitted that Banshidhar died during the pendency of the appeal and the Court was not justified in bringing the legal representatives of the deceased Banshidhar on record. Mr. Lodha has relied on the case of Nani Devi v. Komal Chand, 1987 1 RLR 774.

(3.) It will not be out of place here to mention that in Rajasthan Law of Pre-emption is a codified law. Rajasthan Pre-emption Act came into force in the year 1966. It will not be out of place here to mention that the case cited by Mr. Lodha is not applicable in the instant case as the right of pre-emption is not based on customary law. On the contrary the right of pre-emption is based on codified law of pre-emption. Their Lordships of the Supreme Court in the case of Hazari v. Neki, AIR 1968 SC 1205. Their Lordships held as under :-