ZORAWAL MAI Vs. LRS OF KISHAN

JUDGEMENT

(1.) This D.B. Civil Special Appeal under Section 18 of the Rajasthan High Court Ordinance, 1949 is directed against the judgment and decree dated 21.2.1991 passed by the learned Single Judge in S.B. Civil First Appeal No.26/1977, whereby the learned Single Judge reversed the judgment and decree dated 28.2.1977 passed by the court of Addl. District Judge No.2, Jodhpur and dismissed the suit of the plaintiff filed in exercise of his right for pre-emption.

(2.) As per the facts pleaded in the plaint and in further and better particulars submitted in the trial court on the direction issued by the trial court vide order dated 8.2.1974, the original ancestor of the plaintiff was Roop Raj Bora. His son was Fateh Ram Bora. Fateh Ram Bora had three sons-Har Narayan, Narsingh Das and Ram Narayan. Thereafter, it has been stated in further and better particulars that Har Narayan and Narsingh Das got the house from Fateh Ram. How it came to two sons of Fateh Ram and what happened to Ram Narayan son of Fateh Ram, has not been disclosed in the plaint or in further and better particulars. Be it as it may be, it has been stated that after the death of Har Narayan and Narsingh Das, in the year 1934-35, the ancestral house was partitioned and it has been specifically pleaded that to give effect to the partition by metes and bounds, at some portion t ati was erected and on some portion, even wall was constructed. In para 5 of the plaint, the plaintiff pleaded that in front of plaintiffs ora and maliya (both are small rooms), towards southern side, there is plaintiff's one land, 7 feet wide and 8 feet in length, which goes to the house in dispute, obviously, which came in the hands of Smt. Chothi Bai, the descendant of Narsingh Das by virtue of gift, then sold to defendant no.l. Then it is pleaded that the land of same dimension of Smt. Chothi Bai is coming towards the house of the plaintiff. It is also pleaded that the house is constructed in such a manner that someapartment of the property falling in the share of the plaintiff, is abutting in/on the property of the defendant Smt.Chothi Bai and some apartment of defendant's apartment are coming over the property of the plaintiff. Then it has been pleaded that the construction of house is of such type that the house cannot be sold to other person and, therefore, the plaintiff has right to purchase the house by virtue of his right to pre-empt the sale. Inspite of said pleading in para 5, the plaintiff, in his further and better particulars, stated that 8 feet in length and 7 feet wide land referred above remained unpartitioned and the said land is in joint ownership of the plaintiff. On the basis of the pleadings, the plaintiff submitted that Smt. Chothi Bai could not have sold the part of the house belonging to her without offering it to the plaintiff as per Section 8 of the Rajasthan Pre-emption Act, 1966 (hereinafter referred to as "the Act of 1966")- Section 8 of the Act of 1966 requires a prior notice to a person who has right of preemption before the other person sells the property to any stranger. Admittedly, no notice under Section 8 of the Act of 1966 was given by Smt. Chothi Bai to the plaintiff before the house in question was sold by Smt. Chothi Bai to defendant no.l Sri Kishan vide registered sale-deed dated 8.10.1972. In view of the above, the plaintiff claimed that he is entitled to purchase the house by virtue of sub-clause (1) of sub-section (1) of Section 6 of the Act of 1966, as the plaintiff is co-sharer in the part of the property, which has been sold by Smt. Chothi Bai to defendant no. 1 Sri Kishan.

(3.) Defendant no.l-the purchaser who is son of vendor Chothi Bai submitted written statement and denied that the property was ancestral property of plaintiff and defendant nos. 2 and 3. According to the defendant-purchaser, the property which he had purchased, was of Har Narayan and it was not gifted by Har Narayan to his daughters Chothi Bai and Smt. Aashi Bai. The defendant also denied that Smt. Aashi Bai withdrawn her share from the property of Har Narayan. However, he admitted that he purchased the house from defendant no.2 Chothi Bai on 8.10.1972 for a consideration of Rs.l 1,000/-and got the sale-deed executed in his favour from Smt. Chothi Bai. The defendant denied the joint family of Har Narayan and Narsingh Das and their joint living. He pleaded that he had no knowledge when Narsingh Das died. He also denied partition between Har Narayan and Narsingh Das of the year 1934-35. He denied that the land measuring 8' x 7' remained unpartitioned and is in joint ownership of the plaintiff and the defendant. It is also pleaded that Narsingh Das had three sons Bejiyoji, Jawahar Mal and Jeth Mal. In the house of the plaintiff, said Bejiyoji and Jeth Mai have also share and particularly the maliya arid ora are belonging to widows of Jeth Mai and Bejiyoji. The defendant also denied that Jeth Mai relinquished his share in the property for a consideration of Rs.800/- as the plaintiff has not placed on record any relinquishment deed, nor the plaintiff has disclosed when said Jeth Mal relinquished his share. In sum and substance, all the plaint allegations have been denied except admitting that the property in question was purchased him (by Sri Kishan) from defendant no.2 Chothi Bai by registered sale-deed dated 8.10.1972 for a consideration of Rs.l 1,000/-.