PYARE MOHAN Vs. RAMESHWAR

JUDGEMENT

(1.) Brief facts leading to this appeal are that the respondents Rameshwar and Radhey Shyam along with their father Kalyan Bux (since deceased) filed a suit for pre-emption against Ram Sukh and Abdul Shakoor (since deceased) (His legal representatives have been brought on record). According to the allegations as set up in the plaint Ram Kumar Suraj Bux purchased a shop in a court sale in Samvat year 1976. Mangi Lal father of Kalyan Bux (one of the plaintiffs now deceased) was a partner in firm Ram Kumar Suraj Bux. Mangi Lal died in Samvat year 1992 and the partnership dissolved. On dissolution of the partnership, the shop which was purchased in a court sale by Ram Kumar Suraj Bux came to the share of plaintiff Kalyan Bux. Thereafter the plaintiffs had been using the shop as its owner and had been in its possession. On the west of this shop is another shop, the roof of which belonged to Ram Sukh defendant (since deceased) and to the west of this shop there is a common stair-case which leads to the roof of both the shops. On 2nd January, 1957, Ram Sukh sold the roof to Abdul Shakoor for a sum of Rs. 1,200/- by a registered sale-deed. Abdul Shakoor died and his widow Mst. Rehmat sold this roof to Abdul Gani for a sum of Rs. 1,500/- by a registered sale-deed dated 30th Dec., 1957 who in turn sold it to Pyare Mohan present appellant on 30th December, 1959 for Rs. 1,999/-. On 8th May, 1959, the plaintiff filed an application for amendment of the plaint on the ground that they had no knowledge about the sale of the roof to Abdul Gani, and they prayed that Abdul Gani be also added as a defendant. On further transfer by Abdul Gani to the appellant, the plaintiffs again amended the plaint and impleaded the appellant as a party. The plaintiffs claimed the right of preemption on the principle of Shafi-a-khalit i.e. a common right in immunities and appendages. The defendant contested this suit inter alia on the ground that the plaintiffs were not the owners of the neighbouring shop. The plaintiffs had no easementary right over the roof, the suit was barred by limitation. The learned trial Court decreed the suit and gave a direction that the plaintiffs shall pay Rs. 1,500/-to Abdul Gani defendant and the plaintiffs should file necessary stamps for the execution of the sale-deed in their favour. The defendants Abdul Gani and Pyare Mohan filed an appeal and the plaintiffs filed a cross-objection. The learned District Judge dismissed the appeal filed by the defendants and accepted the cross-objections and gave the following direction:

(2.) Learned counsel for the appellant has contended that both the lower courts have committed an error of law in holding that the adjacent shop on the basis of which the pre-emption is claimed by the plaintiffs was given to Kalyan Bux son of Mangi Lal by Ram Kumar Suraj Bux in lieu of the share of profits of Mangi Lal in the firm Ram Kumar SuraJ Bux. There is no documentary evidence to prove that the shop was given to Kalyan Bux. No entry in the account-books of Ram Kumar Suraj Bux has been produced on record to establish the above fact of transfer in favour of Mangi Lal or Kalyan Bux. Learned counsel drew my attention to the statement of Suraj Bux P. W. 2, Nathu Lal P. W. 3 and Banshidhar P. W. 4 to the effect that there was no entry in the account books of Ram Kumar Suraj Bux. It is further contended that the lower Courts have acted illegally in holding the plaintiffs' claim based on Shafi-a-Khalit as proved. The plaintiffs have utterly failed to prove that they ever used the stairs for approaching the disputed roof in order to reach their own roof as of right for more than 20 years. It is further argued that the suit filed by the plaintiffs was barred by limitation. The disputed roof was sold by the widow of Abdul Shakoor to Abdul Gani vide its sale-deed dated 19th November, 1957 which was registered on 30th Dec., 1957. The original suit was no doubt filed on 2nd Jan., 1958 but Abdul Gani was not made a party. The plaintiffs filed an amendment application on 8th May, 1959, praying for impleading Abdul Gani (which?) will be deemed to have been filed on the date when he was made a party, which admittedly being after 8th May, 1959, was barred by limitation having been filed more than a year after the sale in favour of Abdul Gani. It was also argued that even if it may be admitted for argument's sake that the shop was given to Kalyan Bux he alone could have filed the suit and Radhey Shyam and Rameshwar being strangers had no right of pre-emption and as the strangers have been joined as co-plaintiffs the suit for pre-emption must fail. It is also submitted that Kalyan Bux died on 13th August, 1961 and the right of preemption being a personal right came to an end after his death, as Kalyan Bux died before the passing of the decree by the trial Court, Rameshwar and Radhey Shyam had no right to continue the suit.

(3.) Learned counsel for the appellant has placed reliance on Ramprasad Dagaduram v. Vijaykumar Motilal AIR 1967 SC 278 in which their Lordships held as under: