AMBALAL BHAWANIRAM Vs. BHURA NATHU

JUDGEMENT

(1.) THIS is an appeal by one of the defts. against the appellate decree of the learned Ses. J. Rajasamand in a suit for pre-emption & arises under the following circumstances :

(2.) THE pltf. Bhuralal filed a suit for pre-emption against the applt. Ambalal & Nanda resp. 2 for the pre-emption of a house belonging to Nanda resp. 2 situated in Mauza Giloond in the Ct. of the Dist. Munsiff Chittor at Kapasan. It was alleged that the plaintiff had his own house adjacent to the house in suit in which the drains of the plaintiff's house discharged water. At first it had been agreed between the pltf. & Nanda that the house would be sold to the pltf. But subsequently Nanda changed his mind & sold the house for an ostensible sum of Rs. 350-0-0 to Ambalal applt. on 6-8-1945. It was pleaded that the custom of pre-emption prevailed in the village Giloond & also that the real consideration was Rs. 300-0-0. THE pltf. claimed pre-emption on the payment of the sum found due by the Ct. THE deft. Nanda did not contest the suit but the applt. objected to it on the following grounds : (i) THE pltf. had given his wrong parentage in the plaint & was not a resident of Giloond but of village Pachmata. (ii) THE pltf. refused to purchase the house when offered to him & was therefore not entitled to pre-empt it. (iii) THE pltf. was not entitled to bring a suit for pre-emption having alleged that an agreement of sale of the house in suit had been previously arrived at between him & Nanda. (iv) THE applt. having been a mtgee. with possession of the house in suit foe about 40 years had a preferential right to purchase in (v) THE suit for pre-emption had been brought mala fide.