PRAHLAD KUMAR Vs. KISHAN CHAND

JUDGEMENT

(1.) DEFENDANT No. 2-appellant prahlad Kumar has preferred this Regular first Appeal under Section 96 of the Code of Civil Procedure challenging the impugned judgment and decree dated 9th July, 1992 passed by the Additional District Judge, bayana, in Civil Suit No. 7/89 whereby the trial Court has decreed the suit for pre-emption in respect of the disputed property filed by the plaintiff-respondent No. 1 kishanchand.

(2.) BRIEFLY stated the facts of the appeal are that on 1st March, 1989 the plaintiff filed a suit for pre-emption in respect of disputed property against the defendants in the trial court wherein it was pleaded that the plaintiff and defendant No. 3 Tilluram are real brothers and their ancestral residential house of their ownership is situated in mohallah Sunar Gali, Bayana; the boundaries of which were mentioned in para 1 of the plaint. The division of their house took place in between them about one year ago and after the division a common wall was raised in between their respective portions. It was further pleaded that there is one 'gall' (lane or narrow street), of common ownership and in the possession of the plaintiff and defendant No. 1, situated towards northern side of the portion of plaintiffs house. The said 'gali' was common property of the plaintiff and the defendant No. 1 and both are co-sharers to the same. The drains, windows, ventilators of ground and first floor of the house of the plaintiff have opening in the 'gali'. The said 'gali' is the source of light and air to the house of the plaintiff and he has been enjoying the same since long. The waste-water of sewage, latrine and bathrooms, which have been constructed on projecting eaves at the first floor of the plaintiffs house covering the said 'gali', also passes through the said 'gali'. The drain of water of the house of the defendants also there in the said common 'gali'. Therefore, this narrow space is a common 'gali' of the plaintiff and the defendant No. 1. It was further pleaded that the defendant No. ' 1 secretly sold his house on 9th February, 1989 to the defendant No. 2 Prahlad Kumar for a sum of Rs. 25,000/- and got the sale-deed registered on 10th February, 1989. The description of the house of the defendant No. 1 was given in para 5 of the plaint. The plaintiff has a right of pre-emption over the house belonging to the defendant No. 1 as the plaintiff and the defendant No. 1 both are co-sharer of the common 'gali' situated in between their houses; the plaintiff was and is willing to purchase the said house for a sum of Rs. 25,000/-; the defendant also did not give any notice to the plaintiff under section 8 of the Rajasthan Pre-emption Act, 1966 (for short 'the Act of 1966'), therefore, the present suit was filed with a prayer that a decree of pre-emption be passed in favour of the plaintiff and against the defendants no. 1 and 2 and further the defendants No. 1 and 2 may be directed to handover the possession of the disputed house after payment of rs. 25,000/- by the plaintiff.

(3.) THE defendants No. 1 and 2 filed their joint written-statement on 27th September, 1989 wherein the contents of the plaint, as pleaded, were denied and it was pleaded that the house, the description of which were mentioned in para 1 of the plaint, belongs to the plaintiff and the defendant No. 3 tilluram. The house of the defendants is situated towards northern side of the house of the plaintiff and there is common narrow space (gali/lane) and defendant's land in between the houses of both the parties. It was denied that the drains, windows and ventilators of the plaintiffs house have opening in the said common 'gali' since long, but they have been there for the last 8 to 10 years. Earlier there was only one or two drains in the 'gali'. It was admitted that the defendant No. 1 Kundanlal had executed a sale-deed on 9th February, 1989 in favour of the defendant No. 2 Prahlad Kumar and the same was got registered on 10th February, 1989; the possession thereof has also been handed over to the defendant No. 2; the sale was not made secretly and it was in the knowledge of the plaintiff and other residents of the said locality. The measurement of the common gali as pleaded in suit was denied and, right measurement was mentioned in the written-statement. The right of Pre-emption of the plaintiff was denied. It was pleaded that the common gali is separated from the property which has been sold. There are properties of both the parties towards northern and southern side of each other; and drains, windows, ventilators of both the parties have opening in said common 'gali'. the right of Pre-emption of the plaintiff over the disputed property, on the basis of the said common gali, was denied and it was pleaded that no such right is available under Section 6 of the Act of 1966. The plaintiff was not ready and willing to purchase the disputed property for a sum of Rs. 25. 000/-; the defendant No. 1 kundanlal had offered the plaintiff and his brother to purchase the disputed property but they refused to purchase the same and thereafter the defendant No. 1 Kundanlal sold it to the defendant No. 2 Prahlad Kumar. It was also pleaded that earlier the disputed property was belonging to one Uttamchand, which was sold to the defendant No. 1 kundanlal through registered sale-deed dated 16th April, 1986 and at that time also the said 'gali' was in existence towards the southern side of the disputed property but the plaintiff did not claim his right of preemption nor he was ready and willing to purchase it nor he filed any suit for preemption in this regard. The said sale was in the knowledge of the plaintiff and his brother defendant No. 3 Tilluram. The defendant No. 3 Tilluram is one of the witnesses to the said sale-deed. The house, on the basis of which plaintiff claimed' his right of pre-emption, was a joint property of the plaintiff and tilluram (defendant No. 3), therefore, it is wrong to say that the present sale-deed was executed secretly by the defendant No. 1 in favour of the defendant No. 2. It was also pleaded that there was no need of any notice under section 8 of the Act of 1966, as at both the times the plaintiff and defendant no. 3 Tilluram were offered to purchase the house and only after they refused to purchase it, the defendant No. 1 sold it to the defendant No. 2. The signature of tilluram is there as a witness on the sale-deed dated 16th April, 1986 (Exhibit A-l)executed by Uttamchand in favour of the defendant No. 1 Kundanlal. In the additional pleas, it was also pleaded that the property in dispute has been purchased for commercial use i. e. for establishing an industry, hence no right of pre-emption has accrued to the plaintiff in view of Section 5 of the Act of 1966. The principle of estoppel/waiver is also applicable in the facts and circumstances of the present case and the suit is liable to be dismissed on this ground also. Therefore, it was prayed that the suit of the plaintiff be dismissed.