SWATI BHATIA W/O SHRI BHUPESH BHATIA Vs. LALIT UPADHYAY SHASTRI S/O LATE SHRI SHYAM SUNDER UPADHYAY SHASTRI

JUDGEMENT

(1.) Appellant (defendant), a bona fide purchaser of immovable property, has approached this Court for vindicating her rights vis'-vis the property which are emanated from a registered instrument of sale. The endeavour of the appellant is to get rid of temporary restraining order dated 14th of February 2018, passed by Additional District & Sessions Judge, Nathdwara, District Rajsamand (for short, 'learned trial Court'), foreclosing her rights to raise construction on the property in question. Order impugned came into offing due to indulgence granted by the learned trial Court upon allowing application for temporary injunction of the respondent-plaintiff in their suit for preemption with consequential reliefs and perpetual injunction.

(2.) Succinctly stated, the facts of the case are that respondentplaintiffs instituted a civil suit against appellant-defendant and other proforma respondents for craving aforementioned reliefs. In the plaint, it is inter-alia averred by the respondent-plaintiffs that all of them are legal heirs of Late Shri Shyam Sunder Upadhyay, who purchased shops No.15, 16, 17 & 18 from Goswami Tilkayat Shri Govindlal, by a registered sale-deed dated 15th of March 1971. It is further averred that after demise of Shri Shyam Sunder, all of them are in possession of the property as its owner. A fact pertaining to purchase of roofs of all the aforementioned shops by Shri Shyam Sunder Upadhyay admeasuring 12 x 23 sq.ft. from Tilkayat Shri Govindlal is also incorporated in the plaint with material particulars about date of registered instrument as 24th of September, 1997. The respondent-plaintiffs also pleaded that after execution of saledeed dated 24th of September 1997, proforma respondent No.9/second-defendant, preferred a civil suit for preemption against Shri Shyam Sunder Upadhyay and Nathdwara Temple Board, Nathdwara before Munsif & Judicial Magistrate, Nathdwara bearing Civil Suit No.213 of 1978 and the said suit was decided on 5 th of December, 1980. As per positive assertion of the respondent-plaintiffs, in Civil Suit No.213/78, Court has acknowledged and recognized right of preemption by treating both the properties of co-ownership.

(3.) By asserting all these facts, a specific plea was incorporated in the pleadings that respondent-plaintiffs are having right of preemption vis-'-vis property owned by proforma respondent No.9/second-defendant and, therefore, it was obligatory on his part to have served a notice to the respondent-plaintiffs under Section 8 of the Rajasthan Pre-emption Act, 1966 (for short, 'Act') before entering into sale transaction with the appellant-defendant. Respondent-plaintiffs also mentioned in the plaint that predecessor-in-title of the appellant proforma respondent No.9 has transferred the property in question to appellant-defendant by a registered sale-deed dated 28th of October, 2016 by accepting consideration amount of Rs. 15 Lakhs dehors Section 8 of the Act. The dimensions of the property sold by proforma respondent No.9 to appellant with neighbourhoods are also mentioned in the plaint.