CHANDRA KALLA Vs. SHANKAR LAL

JUDGEMENT

(1.) This appeal arises against the judgment and decree dated 22.5.1986 passed by learned District Judge, Merta whereby the plaintiff respondent no.1's suit for declaration, possession, pre-emption and damages was decreed in his favour.

(2.) The plaintiff respondent no.1 filed a suit in the court of District Judge, Merta for cancellation of the sale, possession, pre-emption and damages against the defendant-appellant, making other respondents no.2 to 8 as defendants stating that the plaintiff-respondent no.1 and one Shri Madan Lal were real brothers. Madan Lal died. Defendant-respondents no.2 to 8 are his legal representatives. Defendant no.8 Kumari Uma is minor and is residing under the guardianship of her mother; defendant no.5 to 8 who were daughters of deceased Madanlal were not a party to the sale but they have been made proforma defendants; plaintiff-respondent no.1 is having 'pattasuda' house situated at Mutho Ka Mohalla, Merta City which was purchased by him; the construction in the house was also carried by him but the name of the deceased Madanlal was inserted in the Patta as he was his younger brother; the Patta stands jointly in the name of defendant respondent no.1 and Shri Madanlal; plaintiff purchased land on 17.11.58 from Municipal Board, Merta and obtained Patta no.411 which stands in the name of plaintiff and his brother Madanlal; thereafter vide Patta No.412 dated 17.11.1951 plaintiff purchased a land towards the Eastern side of the above property and the Patta of this land stands in his name alone; he and Madanlal were residing jointly and after the death of Shri Madanlal the Northern portion of the house was given to the widow of Madanlal and his children and thereafter they started living in that portion of the house but in fact there was no partition between him and Madanlal. It was further stated that the total land covered by these 3 pattas is 416.53 Sq. Yards which includes 16 Sq. Yards land which belong to him exclusively; the defendant-respondents no.2 to 4 sold a part of the said house without the knowledge of the plaintiff respondent no.1 on 4.10.1978 to defendant-appellant and its sale consideration was shown as Rs.10,000/- and the sale includes property which belongs to him; since defendant no.2 to 4 sold the property belonging to plaintiff and Shri Madan Lal jointly; the northern and southern parts of the house are joint and there is a wall in between them and there was a door in the wall; there is only one stair-case to approach first floor, therefore, the plaintiff is entitled to right of pre-emption on the property; the defendant-appellant wanted to make construction over the property which she purchased where the plaintiff gave her a notice and wrong reply was given by her to him, thereafter on 23rd December, 1978 the plaintiff-appellant started demolishing the house and closed the door which was existing in the wall.

(3.) Thus, it was urged that since the property was not partitioned, defendants no.2 to 4 were having no right to sell joint property and further, they were having no right to sell the exclusive property which belongs to plaintiff. Therefore, he prayed that the sale be cancelled. It was further submitted that if the right of defendants no.2 to 4 is established, then too he is entitled to right of pre-emption on the property and obtain possession thereof. It has further been stated that since the plaintiff has sustained loss of Rs.300/- due to construction, the same may be awarded to him.