DHARAM PAL Vs. KAUSHALYA DEVI

JUDGEMENT

(1.) This is a second appeal by the plaintiff Dharmpal against the decree of the Additional District Judge; Ganganagar, dated October 18, 1977 upholding the degree of Civil Judge, Ganganagar dated May 29, 1974, dismissing his suit for pre-emption.

(2.) Facts leading to the filing of this second appeal are that on October 12, 1972 plaintiff Dharampal insituted Civil Original Suit No. 24 of 1972 against the defendant- respondents with the averments that .the plaintiff owned and possessed an "Ahata" (compound) No. 35 in Block `B' measuring 72 x 50' in Gajsinghpur Mandi, Tehsl Padampur District Ganganagar. Adjoining the "ahata" of the plaintiff there was another "ahata" No. 36 in 'B' Block which belonged to Veerbhan. Veerbhan bequeathed 'ahata' No. 36 to Smt. Satyawati wife of Gopichand who is defendant No. 2 in the suit. According to the plaintiff there is a joint wall between 'ahata' No. 35 of the plaintiff and "ahata" No. 36 of the defendant No. 2. This joint wall between the two "ahatas" was commonly used and enjoyaed by the plaintiff and deceased Veerbhan and thus both of them were co-owners of this joint wall. This Joint wall was also alleged to be a common amenity between them and, therefore, the plaintiff had pre-ferential right of purchase of "ahata" No. 36 in the event of its being sold by defendant No. 2. Apart from that, the plaintiff, his father and brother and Gopichand son of Veerbhan. And jointly purchased a shop No. 37 situated in Mandi Gajsinghpur and the same measured 100' x 22' and both sides had equal share in the same. This shop opened towards grain Mandi. In the front portion of the shop rooms were constructed for the purpose of trading While in the back portion of it residential looms were constructed. These constructions there made 25 years before the filing of the suit. As a result of the partition effected on March 16, 1961, the eastern portion of this shop and the residential portion behind it came to the share of the plaintiff. The western portion remained with Gopichand and after his death it came to Smt. Satyawati wife of Gopichand. The stair-cases in both the shop portions and the residential portions remained common between the plaintiff and Gopichand and the intervening wall was also joint between them. The defendant No. 2 without knowledge of and notice to the plaintiff sold half portion of "ahata" No. 36 measuring 50' x 26' and the western portion of the shop and residential house behind it to Smt. Kaushalya Devi defendant No. 1 on October 12, 1971 for an amount of Rs. 15,000/- and got a sale deed registered in that respect. The plaintiff alleged that he has a preferential right of pre-emption with respect to the half portion of the "ahata" and the residential portion behind the shop on western side. He, therefore claimed a decree for pre-emption in respect of these properties in this suit.

(3.) The suit was contested by Vendee Smt. Kaushalya Devi defendant No. 1. She admitted that defendant No. 2 was the previous owner of "ahata" No. 36. She, however, denied the ownership of the plaintiff in relation to "ahata" No. 35. She also denied the jointness of the wall between ahatas Nos. 35 and 36 and also their joint use. It was also denied that shop No. 37 was jointly contracted by the plaintiff and his father and Gopichand. It was also denied that the stair cases of the shops were common. The ownership of the plaintiff in relation to the eastern portion of the shop was also denied. It was further denied that the back portions of the shops are residential in character. On the other hand, they are being used as godown of shops. The preferential right of preferential right of pre-emption claimed by the plaintiff was disputed. It was admitted that defendant No.2 had sold the western portion of the "ahata" No.36 and that of the shop No. 37 to the defendant No. 1 for a consideration of Rs. 15000/- on October 12, 1971. It was stated that sale price of ahata No. 36 was settled at Rs. 9000/- and that of the shop portion at Rs. 6000/- which had been paid by the defendant No. 1 to defendant No. 2.