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2024 DIGILAW 541 (RAJ)

Kaloo Ram v. Radha Kishan

2024-04-03

VINIT KUMAR MATHUR

body2024
ORDER : Mr. Vinit Kumar Mathur, J. - Heard learned counsel for the parties. 2. The present first appeal has been filed against the judgment and decree dated 20.05.1989 passed by the Additional District Judge No.2, Udaipur (hereinafter referred to as 'the trial Court'), whereby the suit preferred by the petitioner was rejected. 3. Briefly noted the facts in the present case are that appellant- Kaloo Ram filed a suit for right of pre-emption against the respondents stating therein that respondent No.2- Narayan Lal had sold a part of house/haveli to the first appellant- Kaloo Ram through a registered sale deed dated 03.11.1978. Subsequently, another portion of the Haveli was also sold by the respondent No.2- Narayan Lal to the respondent No.1- Radha Kishan on 04.10.1979. The respondent No.1- Radha Kishan further sold some portion of the Haveli to the respondent Nos.3 and 4- Abdul Gani and Smt. Femida on 21.07.1980. It was pleaded in the suit that there existed a common passage between the properties of the first appellant i.e. Kaloo Ram and the respondent No.2- Narayan Lal, which is being used by the first appellant and the respondent No.2. It was further pleaded that the property, which was sold by the respondent No.2 is being used by the appellant for going to his premises. As there was a common entrance for both the properties, it was asserted that the first appellant-Kaloo Ram had the right of pre-emption over the property which was sold by the respondent No.2- Narayan Lal to respondent No.1- Radha Kishan. 4. As there was a common entrance for both the properties, it was asserted that the first appellant-Kaloo Ram had the right of pre-emption over the property which was sold by the respondent No.2- Narayan Lal to respondent No.1- Radha Kishan. 4. The trial Court on the pleadings placed before it, framed eight issues which reads as under:- ^^1- D;k fooknxzLr edku o oknh ds edku ds chp dh nhokj 'kkeykrh gS o fofØr edku ds iwoZ esa fLFkr islst esa oknh dk QSjko oknh ds pkSd esa tkus gsrq gS bl izdkj oknh, oa foØhr edku gsrq lfEefyr jkLrk gS vr% oknh dks vxzØ;kf/kdkj gS \ 2- D;k izfroknh Øe 2 us oknh dks mDr foØ; ds iwoZ jktLFkku fiz,E'ku ,DV dh /kkjk 8 ds vuqlkj izfroknh Øe 1 ds i{k esa foØ; fd;s tkus ls iwoZ lwpuki= ugha fn;k o bldk okn ij D;k vlj gS \ 3- D;k okn dk ewY;kadu mfpr ugha fd;k x;k gS \ 4- D;k izfroknh Øe 2 ds fooknxzLr lEifRr foØ; djus dk bjknk gksus dh tkudkjh oknh us izfroknh Øe 1 dks nh Fkh o bldk okn ij D;k vlj gS \ 5- D;k okn es okndkj.k ,oa i{kdkjksa ds nqfHkZ"k.k dk nks"k gS \ 6- D;k izfroknh Øe 3 ,oa 4 ds fo:) dksbZ okn dkj.k okn esa vafdr ugha fd;k x;k gS o bldk okn ij D;k vlj gS \ 7- D;k izfroknh Øe 3 fo'ks"k gtkZ ikus dk vf/kdkjh gS \ 8- vuqrks"k \^^ 5. Out of the eight issues, issue Nos.1 to 5 were decided in favour of the first appellant- Kaloo Ram, however, the finding on issue No.6 was recorded against him and therefore, the suit was dismissed. Hence, the present first appeal has been filed. 6. Learned counsel for the first appellant vehemently submits that the learned trial Court had decided the issue No.6 against the first appellant only on the ground that no relief was claimed against the respondent Nos.3 and 4, who were the subsequent purchasers and the learned trial Court had not given the first appellant an opportunity to pay the amount of sale consideration, which was paid by the respondent Nos.3 and 4 to the respondent No.1. He further submits that had there been any opportunity granted to the first appellant of making any payment to the respondent Nos.3 and 4 for the sale consideration paid by them to respondent No.1, he would have very well paid the same and obtained the decree of pre-emption in his favour. 7. Learned counsel also submits that since the first appellant was aggrieved by the sale which was made by the respondent No.2 to respondent No.1, thus, there was no occasion for him to challenge the subsequent sale made by respondent No.1 to respondent Nos.3 and 4. He further submits that since the right of pre-emption was only against the respondent No.2 (owner of the property), therefore, the challenge was made only to the first sale i.e. the sale made by the respondent No.2 to respondent No.1. Thus, he submits that the finding recorded on issue No.6 is incorrect and prays that the same may be quashed and set aside. 8. Per contra, learned counsel for the respondents submits that the finding recorded by the learned trial Court on issue No.6 does not suffer from any infirmity as the sale was effected by the respondent No.1 in favour of the respondent Nos.3 and 4 well before filing of the suit by the first appellant and since no relief was claimed by him against the respondent Nos.3 and 4, therefore, the learned trial Court had rightly rejected the suit filed by the first appellant-plaintiff. Learned counsel for the respondents supports the findings recorded by the learned trial Court in its order dated 20.05.1989. He, therefore, prays that the first appeal preferred by the first appellant may be dismissed. 9. I have considered the submissions made at the bar and gone through the relevant record of the case including the order impugned dated 20.05.1989. 10. There is no dispute with respect to location of the premises of the first appellant and the respondent No.2. It is also not disputed that there is a common entrance to both the properties, which is being used by the first appellant and the respondent No.2. The respondent No.2 sold the property to respondent No.1 on 04.10.1979 and received sale consideration amounting to Rs.20,500/-. Subsequently, the property which was purchased by the respondent No.1, some part of it was sold by him to respondent Nos.3 and 4 on 21.07.1980. The respondent No.2 sold the property to respondent No.1 on 04.10.1979 and received sale consideration amounting to Rs.20,500/-. Subsequently, the property which was purchased by the respondent No.1, some part of it was sold by him to respondent Nos.3 and 4 on 21.07.1980. Thus, it is clear that before filing of the suit in the year 1986, the first appellant was well aware of the fact that the respondent No.1 had further sold the property in question. The second sale having been effected before filing of the suit filed by the first appellant, although the respondent Nos.3 and 4 were arrayed as defendant Nos.3 and 4, but no relief was claimed against them by the first appellant-plaintiff. 11. The trial Court after taking into consideration the evidence on record had decided the issue Nos.1 to 5 in favour of the first appellant. On issue No.6 also, the trial Court appreciated the facts brought before it but had rightly come to the conclusion that since no relief was claimed by the first appellant against the respondent Nos.3 and 4, who are in-fact in possession of the property, therefore, no relief can be granted to the first appellant-plaintiff. 12. The trial Court also appreciated the fact that the first appellant-plaintiff never offered to pay the second sale consideration, which was made by the respondent Nos.3 and 4 to respondent No.1, thus, no relief can be granted to him. 12. The trial Court also appreciated the fact that the first appellant-plaintiff never offered to pay the second sale consideration, which was made by the respondent Nos.3 and 4 to respondent No.1, thus, no relief can be granted to him. For ready reference and clarity of the facts in issue, the finding recorded by the trial Court is reproduced hereunder:- ^^12- bl ekeys esa oknh us tks nkok fd;k gS mlesa dgk x;k gS fd foØ;i= fnukad 4-10-79 esa tks fd izfroknh la[;k 2 dh vksj ls izfroknh la[;k 1 ds i{k esa fy[kk x;k gS] mlesa izfroknh la[;k 1 ds ctk;s oknh dk uke izfrLFkkfir fd;k tkosa vFkok oknh ds uke foØ; djk;k tkosa vkSj ;g Hkh dgk x;k gS fd :i;s 20]500@& oknh ls izfroknhx.k esa ls ftl fdlh dks Hkh U;k;ky; mfpr le>s] fnyk;s tkosa rFkk vkf/kiR; izfroknhx.k ls oknh dks fnyk;k tkosA fo}ku odhy izfroknhx.k dk dguk gS fd tc izfroknh 1 us viuh tk;nkn izfroknh la[;k 3 o 4 dks cSp nh vkSj og Øe'k% 18]000@& o 8]000@& esa csph gS rks igys okyk foØ; ftldks izfroknh la[;k 2 us izfroknh la[;k 1 ds i{k esa fd;k vkSj ftldh foØ; jkf'k 20]500@& Fkh og jkf'k nsdj dSls oknh izfroknh la[;k 3 o 4 ls bl tk;nkn dk dCtk izkIr dj ldrk gS tcfd oknh us izfroknh la[;k 3 o 4 us foØ; dh tks jkf'k nh gS] og nsus dk u rks vkWQj fd;k gS vkSj u bl jkf'k ij dksVZ Qhl nh gSA 13- bl laca/k esa dksbZ fookn ugh gS fd izfroknh la[;k 1 us tk;nkn uksfVl ds ckn Hkh izfroknh la[;k 3 o 4 dks csp nh tks Øe'k% :i;s 18]000@& o 8]000@& esa csph xbZA iz'u mBrk gS fd D;k tc tk;nkn [kjhnnkj vkSj vkxs csp ns rks D;k blds ckotwn Hkh oknh igys okys cSpku ds vk/kkj ij vxzØ;kf/kdkj dh fMØh izkfIr dj ldrk gS vkSj vxj igys okys cSpku esa tks izfroknh la[;k 2 us izfroknh la[;k 1 ds i{k esa fd;k izfroknh la[;k 1 ds LFkku ij oknh dk uke izfrLFkkfir dj fn;k tkos rks D;k og bQsDVho fMØh gksxh tcfd tk;nkn ckn esa izfroknh la[;k 3 o 4 dks csp nh xbZ gSA 14- bl fLFkfr ds ckjs esa dkuwu esa D;k izko/kku gS ;g Li"V rkaaaSj ij u rks fo}ku odhy oknh us crk;k gS vkSj u gh fo}ku odhy izfroknhx.k us bl laca/k esa fdlh dkuwu ds fo'ks"k izko/kku dk mYys[k fd;k gSA 15- mDr vf/kfu;e dh /kkjk 20 rc ykxw dh tkrh gS tc fMØh dh vuqikyuk esa fiz,sEiVj vko';d :i;s vnkyr esa tek djk nsrs gS mlds ckn vkxs dk dksbZ Hkh VªkUlQj oksbMscy gksxkA mDr vf/kfu;e dh /kkjk 15 ds vuqlkj oknh ds gd esa dksbZ fMØh rc rd ikfjr ugha dh tk ldrh tc rd rkjh[k fMØh ds jkst mldk vxzØ;kf/kdkj ftank ugha gksA bl /kkjk ds izksohtks ds vuqlkj nkoknk;jh ds ckn esa tk;nkn dk VªkUlQj fiz,sEVj ds fdlh Hkh vf/kdkj dks tks nkoknk;jh ds oDr mls miyC/k gks] mls lekIr ugha dj ldrkA bl /kkjk ds vuqlkj vxzØ;kf/kdkj ewy cSpku ds oDr oknh ds ikl gksuk pkfg;s vkSj og vf/kdkj nkoknk;jh ds jkst Hkh miyC/k gksuk pkfg;s vkSj ;g vf/kdkj fMØh ds jkst Hkh gksuk pkfg;sA 1+6- ;g Li"V gS fd vxzØ;kf/kdkj ,d cgqr ohd fdLe dk vf/kdkj gS blfy, ;g fMyhV Hkh fd;k tk ldrk gSA bl ekeys esa ;g Li"V gS fd nkoknk;jh ds igys izfroknh la[;k 1 us tk;nkn izfroknh la[;k 3 o 4 dks cSp nh Fkh blfy, /kkjk 15 dk izksohtks bl ekeysa esa ykxw ugha gksrkA ;g Hkh Li"V gS fd vHkh rd nhokj oknh vkSj izfroknh la[;k 3 o 4 ds chp 'kkeykrh gS iSlst Hkh dkseu gS blfy, muds f[kykQ Hkh oknh dh vxzØ;kf/kdkj vHkh rd miyC/k gS vkSj mUgsa i{kdkj Hkh cuk;k x;k gS ysfdu esjs er esa nkok fMQsDVho gS D;ksafd blesa izfroknh la[;k 3 o 4 dks ftl dher esa oknxzLr tk;nkn csph xbZ gS og dher vnk djus dh bPNk oknh us tkfgj ugha dh flQZ og dher vnk djus dh bPNk tkfgj dh xbZ gS ftl dher esa ukjk;.kyky us tk;nkn jk/kkfd'ku dks cSph FkhA ,slh fLFkfr esa flQZ blh otg ls ;g nkok fMØh ;ksX; ugha jg x;k gS D;ksafd oknh us 8]000@& o 18]000@& vnk dj izfroknh la[;k 3 o 4 ds LFkku ij vius dks izfrLFkkfir djus dh dksbZ bLrnqvk ugha dh gSA vr% ;g rudh izfroknhx.k ds i{k esa o oknh ds fo:) r; dh tkrh gSA rudh la[;k 7 % 17- bl laca/k esa izfroknh la[;k 3 dh rjQ ls cgl ds nkSjku dksbZ fo'ks"k ckr ugha dh xbZ gSA vr% ;g rudh izfroknh la[;k 3 ds fo:) fuf.kZr dh tkrh gSA vkns'k 18- rudh la[;k 6 ds fofuf'p; esa of.kZr dkj.kksa ds vk/kkj ij oknh dk nkok [kkfjt fd;k tkrk gSA i{kdkjku [kpkZ eqdnek viuk viuk ogu djsaxsA^^ 13. The trial Court had taken recourse of Section 15 and Section 20 of the Rajasthan Pre-emption Act, 1966, which clearly prescribe that if a pre-emptor, in pursuance of the decree, deposits a sum in the Court, only then, the transfer made by any person will become voidable as per Section 20 of the Act of 1966. It is further stated that as per Section 15 of the Act of 1966, no decree can be passed against a person, if the right of pre-emption is not in existence for grant in his favour at the time of passing the decree. 14. In the present case, after the sale made by respondent No.2 to respondent No.1, the respondent No.1 had further sold the property to respondent Nos.3 and 4 and since no relief was claimed against them, the trial Court rightly decided the issue No.6 against the first appellant-plaintiff. 15. In view of the discussion made above, the first appeal preferred by the appellant lacks merit and the same is therefore, dismissed. The order dated 20.05.1989 passed by the trial Court is affirmed. 16. In view of the order passed in First Appeal No.75/1989, the cross-objections filed by the respondent No.4 also stand decided.