NAND KISHORE Vs. INDIRA BAI

JUDGEMENT

(1.) THE plaintiff Nand Kishore has failed in both the courts below in obtaining a decree for pre-emption with respect to house properties mentioned in paras 3 and 4 of the plaint. Facts which are not in dispute between the parties may first be stated. By a registered sale deed dated December 24, 1970, the plaintiff purchased a 'guwari' situated in Sadar Bazar (Bhajan chowki) in Chittorgarh from Sukkha, Phool Chand and Bhanwar Lal respondents of village Ghosunda, Tehsil Chittorgarh for a consideration of Rs 5000/ -. THE northern wall of this property was a joint or common wall of the vendors of the plaintiff and that of Mohan Lal Mochi. Smt. Indira Bai defendant purchased from Mohan Lal the property detailed and described in para 3 of the plaint for a consideration of Rs. 3000/- under a registered sale deed dated January 22, 1972. On the same day the defendant further purchased another property detailed and described in para 4 of the plaint from Jaskaran for a consideration of Rs. 2000/- under a registered sale deed dated January 21, 1972. THE plaintiff Nand Kishore instituted Civil Original suit No 12 of 1973 in the court of Munsif, Chittorgarh on June 15, 1973 for pre-emption in relation to the aforesaid two properties which had been purchased by the defendant from Mohan Lal Mochi and Jaskaran. THE right of pre-emption was claimed on the following grounds, namely:- (1) That the northern wall of the property purchased by the plaintiff from Sukhaji, Phool Chand and Bhanwar Lal was common between the plaintiff and Mohan Lal Mochi, vendor of the defendant. Apart from that the passage, chowk and pole was joint along with plaintiff. (2) Similarly the passage, ehowk and pole of the property purchased by the plaintiff was common with Jaskaran from whom the defendant had purchased the property mentioned in para 4 of the plaint. (3) THE rain water falling on the property purchased by the defendant also flowed through the joint chowk and the domestic water also flowed through the common chowk. (4) All the properties are situated in the same Gwari of Kishanaji Mochi which has a gate towards the south. THE plaintiff reaches to his property through this chowk and the means of access to the properties purchased by the defendant is also through the chowk. (5) No notice had been served by Mohan Lal and Jaskaran to the plaintiff under Section 8 of the Rajasthan Pre-emption Act, 1966. Since the plaintiff had preferential right of purchase, he served notice upon the defendant on July 9, 1972, but the properties were not transferred to the plaintiff.

(2.) DEFENDANT Indira Bai disputed the pre-emption right of the plaintiff on the ground that although, there was a wall between the property purchased by the plaintiff and the property which had been purchased by the defendant from Mohan Lal. However, half the width of the wall was of Mohan Lal and other half of the plaintiff It was denied that the chowk and pole were joint. The plaintiff had only a right of passage. Flowing of water through the chowk was also denied. It was stated that there was no chowk of the plaintiff. It was also said that previously Jaskaran and Mohan Lal Mochi used to come to their property and now the defendant comes to her property which does not cause any inconvenience to the plaintiff. According to the defendant, it was not necessary to serve a notice under Section 8 of the Rajasthan Pre-emption Act, 1966. Lastly it was pleaded by the defendant that after purchasing the property, she had con-structed a double storey godown and some rooms in the second storey and has spent an amount of about Rs. 21,500/- in making these constructions. Constructions were started on February 3, 1972 and were completed at the end of June, 1972. The plaintiff had at no stage taken steps to prevent the defendant from making these hew constructions and never expressed his intention to claim pre-emption. The defendant had raised the second storey upon her share of the wall. Since the defendant had raised a new construction to the knowledge of the plaintiff and he did not object it at any time against raising of these constructions and only gave notice after the defendant had completed constructions. It amounted to acquiescence on the part of the plaintiff and his right of pre-emption has extinguished. The present value of the property was about Rs. 35000/-, Pleas regarding waiver and estoppel were also raised.

(3.) MR. Suresh Shrimali appearing for MR. D. S. Shishodia, learned counsel for the defendant-respondent supported the reasonings given by the courts below in dismissing the suit of the plaintiff.