NEN MAL Vs. KAN MAL

JUDGEMENT

(1.) This judgement shall also dispose of Special Appeal No. 76 of 1981 and Special Appeal No. 77 of 1981. The common question involved for decision in all these three matters relates to the constitutional validity of Cl.(iii) of Sub-Sec. (1) of S.6 of the Rajasthan Pre-emption Act, 1966.

(2.) Plaintiff Kanmal filed Civil Suit No. 10 of 1974 in the Court of District Judge, Jodhpur, claiming a decree for pre-emption on the basis of his right of pre-emption contained in S.6(1)(iii) of the Rajasthan Pre-emption Act, 1966 on the ground of easement of light and air. This suit has been decreed on Oct. 13, 1976 by the Additional District Judge No. 2, Jodhpur, granting a decree for pre-emption to the plaintiff on payment of the sale price of Rs. 13,000/- together with Rs. 9,285/- as cost of improvement of the property incurred by the defendant. Defendant Nen Mal has filed this appeal (First Appeal No. 7 of 1977) against the decree for pre-emption granted in plaintiff's favour, while the plaintiff has filed a cross-objection against the direction to pay Rs. 9,285/- as the cost of improvement incurred by the defendant. The question of constitutional validity of S.6(1)(iii) of the Rajasthan Pre-emption Act raised by the defendant in the suit is the only point reiterated in this appeal.

(3.) The other two matters, namely Special Appeal Nos. 76 of 1981 and 77 of 1981 arise out of two other suits filed by plaintiff Moti Lal in the Court of District Judge, Jodhpur. One of these suits was against Paru Lal and Smt. Vilashwati, while the other suit is against Smt. Shanti and Smt. Vilashwati. Both these suits are for pre-emption on the basis of right of pre-emption contained in S.6(1)(iii) of the Rajasthan Pre-emption Act, 1966 on the ground of easement of light and air and passage of dirty water. The defendants raised the question of constitutional validity of S.6(1)(iii) of the Rajasthan Pre-emption Act therein and applied for referring the question under S.113, C.P.C. to the High Court for its decision. The application was rejected by the Additional District Judge No. 2, Jodhpur, who is trying these suits. Thereafter the defendants filed application in this Court for deciding this question under Art.228 of the Constitution. A learned single Judge of this Court by common order dated Oct. 1, 1980 has rejected the applications and held that the said provision is valid. That decision is reported in Parulal v. Motilal, AIR 1981 Raj 119. Aggrieved by the order of the learned single Judge, the defendant in each case has preferred a special appeal under Section 18 of the Rajasthan High Court Ordinance, 1949. Hence these two special appeals involving the same question.