GHANSHYAM Vs. CHAND BIHARI AND ORS.

JUDGEMENT

(1.) This appeal is directed against the judgment and decree passed by Additional District Judge, Jaipur City, Jaipur dated 14.10.1986 in Civil Suit No. 167/80 (old No. 106/79). The appellant herein is the original defendant No. 1 of the said suit. The aforesaid suit was filed by the plaintiffs (respondent No. 1 to 3 herein) against the present appellant as well as the respondent No. 4. The respondent No. 1 to 3 filed the aforesaid suit for pre -emption on the ground that a Haveli bearing Municipal No. 1796 situated at Chowkri Top Khana Desh, Rasta Khutetan, Near Peepla House, Jaipur, was a joint family property. It is also the case of the plaintiffs that the defendant No. 2 (respondent No. 4 herein) filed a suit for partition of the said Haveli against the plaintiffs' father Bhagwan Sahay and others in the court of Civil Judge, Jaipur city, Jaipur, wherein a decree for partition was passed on 16.12.1964 and as per the said decree, the house was divided amongst the co -sharers. One of the co -sharer Smt. Bhonri Bai gifted her share to the respondent No. 4 (original defendant No. 2) Chhagan Lal and another co -sharer Smt. Barfi Bai sold her share for Rs. 3000/ - to said defendant No. 2 Chhagan Lal and accordingly the defendant No. 2 Chhagan Lal became the owner of the portion of the house belonging to Smt. Bhonri Bai and Smt. Barfi Bai. It is the case of the plaintiffs that portion of the said house was sold by said Chhagan Lal to the present appellant (original defendant No. 1) by way of registered sale deed on 02.09.75. It is also the case of the plaintiffs that the sale price of Rs. 15000/ - was not genuine one as the property was not worth more than Rs. 5100/ -. On such and other grounds, the suit for pre -emption was filed by the plaintiffs (respondent No. 1 to 3 herein). In the said suit, it is prayed that the decree may be passed in favour of the plaintiffs and the possession of the property be given to them by fixing the price of the portion of the house at Rs. 5100/ - or at a reasonable price, which the court may fix. The suit was resisted by the present appellant (defendant No. 1 in the suit), who is the purchaser of the portion of the said house. It is the case of the present appellant that the defendant No. 2 Chhagan Lal initially asked the plaintiffs to purchase the portion of the house in question, but the plaintiffs denied the same and therefore, by their conduct, waived their right and now they are estopped from claiming the preemption rights. It is the case of the present appellant -defendant No. 1 that since the plaintiffs had no means to purchase the portion of the house, they waived their right of preemption. It is also the say of the defendant No. 1 in the written statement that the sale consideration of Rs. 15000/ - is the real consideration. It is also the case of the defendant No. 1 that the suit is time -barred. The defendant No. 1 also took the objection to the effect that the plaint should be rejected under Order 7 Rule 11 CPC as the suit is under -valued. The defendant No. 1 also submitted a separate application under Order 7 Rule 11 CPC. At a subsequent stage, the plaintiffs amended the plaint and put the valuation of the suit at Rs. 15000/ - and paid the additional court fee and the learned Civil Judge thereafter passed an order returning the plaint for presentation to the proper court and ultimately, the plaint was presented before the District Judge on 13.04.1979. The learned trial judge framed various issues arising out of the pleadings and after considering the oral and documentary evidence on record, by his judgment and decree dated 14.10.1986 decreed the suit. The said judgment and decree is challenged by the present appellant, who was the defendant No. 1 in the suit.

(2.) Learned advocate Mr. R.P. Garg, appearing for the appellant, vehemently submitted that the trial court has gravely erred in decreeing the suit in favour of the original plaintiffs. It is submitted by Mr. Garg that the plaintiffs were not in a position to purchase the portion of the house in question as they had no means at the relevant time to pay the consideration of Rs. 150000/ -. It is further submitted by him that even in the sale -deed, there is also a reference that the plaintiffs were asked whether they were willing to purchase the portion of the house in question, but they denied the said offer. Mr. Garg further submitted that since the plaintiffs had no means to pay the requisite court fee, the suit was under -valued at the time of filing of the same and subsequently when the financial condition of the plaintiffs improved, they changed the valuation of the suit and accordingly valuation was corrected to Rs. 15000/ - and additional court fee was paid on the same. Mr. Garg further submitted that at the time when the valuation was corrected and the plaint was presented before the District Court, the same was time barred by that time as it was required to be filed within 1 year and that the suit was accordingly required to be dismissed on the ground of limitation and accordingly, the plaintiffs had waived their right of purchasing the property. It is also submitted by Mr. Garg that the plaintiffs were never in a position to purchase the portion of the house in question and therefore, they have waived their right and in view of waiver and estoppel, the suit was required to be dismissed. It is also submitted by Mr. Garg that preemption is a very weak right and it was not necessary for seller defendant No. 2 to give notice in writing to the plaintiffs before executing the sale -deed in favour of the defendant No. 1. It is also argued by Mr. Garg that earlier when the property was sold to Chhagan Lal by co -sharer Smt. Barfi Bai, the plaintiffs had not claimed any such right and accordingly, gave up their right of preemption by their conduct and now no such right is available on subsequent sale of the same property and now the plaintiffs are estopped from claiming any right of preemption on subsequent sale. Mr. Garg submitted that it was held in the earlier proceedings in a partition suit filed by the defendant No. 2 Chhagan Lal, who sold the portion of the house to the present appellant, that the defendant No. 2 Chhagan Lal had no right in the disputed property and when Chhagan Lal purchased the portion of the house from the other co -sharer, the plaintiffs could have very well objected the same and could have asserted the right of preemption, which has not been done. It is also submitted by Mr. Garg that one of the co -sharer in the house in question Smt. Moti Bai entered into an agreement to sale on 10.08.1976 with the appellant and at the time a letter was also written by said Smt. Moti Bai asking the plaintiffs to purchase the property, but the plaintiff No. 1 Chand Bihari refused to buy the same by giving reply on 07.04.1976 and subsequently a registered sale deed was executed by Smt. Moti Bai in favour of the present appellant on 08.05.1983 and possession was also handed over at that time. It is also submitted by Mr. Garg that in view of above, the appellant has also become the owner of the adjoining portion of that very house and therefore, also the suit of the plaintiffs for preemption is not maintainable. It is also argued by Mr. Garg that the respondent No. 4 Chhagan Lal also sold portion of the house by registered sale deed to appellant's son Mahesh and appellant's wife Ram Pyari and that both of them by way of registered gift deed dated 03.01.2001 transferred the part of the property in favour of the present appellant and that substantial portion of the house is in possession of the appellant and in view of the subsequent development also, the suit is required to be dismissed. It is also argued by Mr. Garg that the house in question is a commercial premises, wherein the appellant, who is the purchaser of the house, is doing the business of sculpting of Murtis and other articles and since the property is used for commercial purpose, the right of preemption is not available to the plaintiffs. It is also argued by Mr. Garg that in relation of the part of the property which was transferred in favour of his son and wife of the appellant, a preemption suit was filed by the plaintiffs, but the said suit was dismissed, against which a First Appeal was filed bearing No. S.B. Civil First Appeal No. 51/83 before this court and the same was also dismissed for non -prosecution and accordingly, the transfer of the property in question in favour of Mahesh and Ram Pyari has become final and they also accordingly became co -sharers of the property. It is submitted by Mr. Garg that in view of the aforesaid facts and circumstances of the case, the plaintiffs have failed to make out any case for preemption and that since the plaintiffs had no means to purchase the portion of the house, now they cannot claim any preemption right in connection with the suit house. It is also argued by Mr. Garg that the father of the plaintiffs Bhagwan Sahay filed a suit against the defendant No. 2 Chhagan Lal as well as Barfi Bai, Moti Bai and Kamal for injunction and subsequently the said suit was dismissed as having been abated and therefore, the present suit is not maintainable.

(3.) Learned advocate Mr. B.P. Agarwal on the other hand submitted that the trial court has rightly appreciated the evidence on record and after appreciation of the evidence on record, the trial court has rightly passed the decree for preemption in favour of the plaintiffs. It is also submitted by Mr. Agarwal that before selling the portion of the house to the defendant No. 1, the defendant No. 2 had never even orally asked the plaintiffs about their willingness to purchase the portion of the house in question. It is submitted by Mr. Agarwal that since initially according to the plaintiffs, the sale consideration of the portion of the house was on higher side, the plaintiffs had put the valuation at Rs. 5100/ -, which was subsequently corrected and the plaintiffs accepted the consideration at Rs. 15000/ - and for, which additional court fee was also paid. It is submitted that since the original suit was filed within limitation, it cannot be said that the suit is barred by limitation. It is also submitted by Mr. Agarwal that if the offer was made at the relevant time by the defendant No. 2, the plaintiffs were willing to purchase the portion of the house in question. It is also submitted that the trial court has rightly decreed the suit in favour of the plaintiffs.