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2024 DIGILAW 593 (RAJ)

Gyarshi Lal, S/o. Shri Mahadev v. Babu Lal, S/o. Shri Ram Sahai

2024-04-15

NARENDRA SINGH DHADDHA

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JUDGMENT : Narendra Singh Dhaddha, J. 1. The instant civil second appeal has been filed by the appellant-defendant-Gyarsi Lal (for short ‘the defendant’) against the judgment and decree dated 09.11.1995 passed by the Additional District and Sessions Judge, Neem Ka Thana (Dist. Sikar) (for short ‘the appellate court’) in Civil Appeal No. 24/86(50/85), titled as “Babu Lal and Ors. vs. Gyarsi Lal & Ors.”, where by the appellate court allowed the appeal filed by the respondent-plaintiff(for short ‘the plaintiff’) reversed the judgment and decree dated 07.05.1985 passed by Mansif and Judicial Magistrate, 1st Class, Neem-Ka-Thana(District Sikar) (for short ‘the trial court’) in Civil Suit No.112/78, whereby the trial court dismissed the plaintiff’s suit for pre-emption. 2. Brief facts of the case are that the plaintiff filed original suit for pre-emption against the defendant-Gyarsi Lal and Arjun Ram, brother of the proforma respondent No.9. During pendency of the appeal, he died and Smt. Basanti Devi was substituted as his legal heir. The plaintiff in his suit mentioned that the said Guwari is a joint property of his father Shri Ram Sahai and Arjun Ram. For the purpose of residence, they were using two rooms showing east side and one Varandha in front of these rooms and stair case situated in the said Varandha. The plaintiff in his suit further mentioned that the main gate of said Guwari was constructed by his father Shri Ram Sahai as well as Arjun Ram, which was being used by them. Plaintiff also mentioned that Arjun Ram was living with his sister at village Jat Ki Dhani, Tehsil Khetri. He sold the portion, which was in his possession without informing the plaintiff. The plaintiff is entitled to purchase the share of the defendant on the basis of pre-emptory right. So, the suit filed by the plaintiff should have been decreed in his favour. 3. The defendant filed the written statement before the trial court and denied the averments made in the suit and mentioned that there is a separate Will about the said portion. So, no right of pre-emption was accrued of the plaintiff. The defendant further mentioned that before selling the disputed property, he informed the plaintiff but he was not ready to purchase the disputed property at that time. So, the plaintiff had waived his rights. 4. So, no right of pre-emption was accrued of the plaintiff. The defendant further mentioned that before selling the disputed property, he informed the plaintiff but he was not ready to purchase the disputed property at that time. So, the plaintiff had waived his rights. 4. The trial court on the basis of pleadings, framed the following issues:- (1) Whether as per plaintiff, the main gate of the disputed Guwari is being used by the plaintiff and defendant No.2 and whether the defendant No.2 has right to use the same for to and fro purposes? (2) Whether the plaintiff has half share in the disputed Guwari and chowk, land and houses etc. in the Guwari are joint properties and plaintiff has right of pre-emption? (3) Whether the defendant No.2 sold the joint property without any registered notice and whether the plaintiff has right of pre-emption? (4) Whether the plaintiff has no right to file the suit of pre-emption? (5) Whether defendant No.2 had asked the plaintiff earlier and on the denial by the plaintiff to purchase the property, the plaintiff had no right of pre-emption? (6) Relief? 5. The trial court on completion of trial vide its judgment and decree dated 07.05.1985 dismissed the suit filed by the plaintiffs. Aggrieved with the said judgment and decree dated 07.05.1985, the plaintiffs preferred an appeal before the Appellate Court. The Appellate Court vide its judgment and decree dated 09.11.1985 allowed the appeal and reversed the judgment and decree dated 07.05.1985 passed by the trial court. 6. By way of this second appeal, the defendant-Gyarsi Lal has challenged the judgment and decree dated 09.11.1985 passed by the appellate court. 7. This court on 21.03.2006 has framed the following substantial question of law:- “Whether the evidence of the First Appellate Court is based on misreading and mis-appreciating on evidence and is perverse?” 8. Learned counsel for the defendants submits that the appellate court has committed an error in reversing the judgment and decree dated 07.05.1985 passed by the trial court. Learned counsel for the defendants also submits that as per statement of PW-1 Shri Babu Lal, main gate of both the properties are separate. Learned counsel for the defendants also draws the attention of this court towards the commissioner report dated 31.10.1982 and map annexed with it. Learned counsel for the defendants also submits that as per statement of PW-1 Shri Babu Lal, main gate of both the properties are separate. Learned counsel for the defendants also draws the attention of this court towards the commissioner report dated 31.10.1982 and map annexed with it. Learned counsel for the defendants further submits that as per commissioner report, both the properties are separate and gate of both the properties are not joint. Learned counsel for the defendants also submits that DW-2-Bodu Ram and DW-3-Phool Chand in their statement clearly stated that gate of both the properties are separate. So, no right of pre-emption was accrued of the plaintiffs. Learned counsel for the defendants also submits that the appellate Court has also committed an error in reversing the findings of the trial court on account of non-examination of Arjun Ram as a witness. Learned counsel for the defendants also submits that as per evidence, oral partition was executed and both were in possession of their portion. Learned counsel for the defendants also submits that before selling the disputed property, the defendants informed the plaintiffs but they denied to purchase the disputed property. So, there was no need to give any written notice to the plaintiffs under the pre-emption Law. So, the present appeal deserves to be allowed and the judgment and decree dated 09.11.1985 passed by the appellate court be set-aside. 9. Learned counsel for the defendants has placed reliance upon the following judgments:-(1) Indira Bai Vs. Nand Kishore reported in AIR 1991 SC 1055 ; (2) Devilal & Ors. Vs. Kishanlal & Ors. in S. B. Civil Second Appeal No.7/1982 decided on 07.03.2006; (3) Smt. Rukmani Devi Vs. Prabhu Narayan & Ors. in S. B. Civil First Appeal No.122/81 decided on 25.05.2007; (4) Amarlal Vs. Nagar Palika, Sawai Madhopur reported in 2017 (3) WLC (Raj.) 474 and (5) Mushtaq Ahmed Vs. Mohd. Akhtar reported in 2017 (3) WLC(Raj.) 496. 10. Learned counsel for the plaintiffs has opposed the arguments advanced by learned counsel for the defendants and submitted that as per evidence of the plaintiffs as well as commissioner report dated 31.10.1982, it was clearly proved that the said Guwari and main gate of the disputed house is common. As per sale deed, it is also proved that there was only one gate. Defendant Arjun Ram was not present before the trial court for adducing the evidence. As per sale deed, it is also proved that there was only one gate. Defendant Arjun Ram was not present before the trial court for adducing the evidence. So, the appeal filed by the defendant be dismissed. 11. I have considered the arguments advanced by learned counsel for the defendants as well as learned counsel for the plaintiffs. 12. It is an admitted position that before selling the disputed property, the defendants had not given any notice to the plaintiff, as mandated under Law. The plaintiff had pre-emptory right to purchase the disputed property. So, in my considered opinion, the appellate court has not committed any error in reversing the judgment and decree dated 07.05.1985 passed by the trial court. So, the present second appeal being devoid of merit, is liable to be dismissed, which stands dismissed accordingly. 13. Pending application(s), if any, also stand(s), dismissed.