Rajasthan High Court - Jodhpur
Pukhraj Soni vs Smt. Nisha Chitlangiya on 24 October, 2018
Author: P.K. Lohra
Bench: P.K. Lohra
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Second Appeal No. 103/2018
Pukhraj Soni S/o Late Shri Bhanwar Lal Ji Soni, aged about 68
years, resident of Near Galaxy Hotel, Over Bridge, Jodhpur
(Rajasthan)
----Appellant
Versus
1. Smt. Nisha Citlangiya W/o Shri Deepak Chitlangiya, R/o-
145-A, Mohanpura, Jodhpur
2. Legal Representatives of Late Smt. Tara Devi W/o Late
Shri Kalyan Singh's :-
2/1. Rakesh
2/2. Birendra
2/3. Smt. Seema W/o Shri Pradeep Singh,
Sons and daughters of Late Smt. Tara Devi W/o Late Shri
Kalyan Singh, all major, all by caste - Rajput, resident of
- House No.118 (First Floor), Bhagat Ki Kothi Extension
Scheme, infront of New Campus, Jodhpur
----Respondents
For Appellant(s) : Mr. Rameshwar Chauhan
For Respondent(s) : Mr. Jitendra Chopra
HON'BLE MR. JUSTICE P.K. LOHRA
Judgment 24/10/2018 Appellant-plaintiff has preferred this second appeal under Section 100 CPC challenging judgment and decree dated 8 th of February, 2018 passed by Additional District Judge No.1, Jodhpur Metro (for short, 'learned First Appellate Court'), whereby the learned First Appellate Court has upheld the judgment and decree (2 of 7) [CSA-103/2018] dated 22nd of December, 2010 passed by learned Additional Civil Judge (Senior Division) No.2, Jodhpur (for short, 'learned trial Court').
In brief facts of the case are that appellant-plaintiff filed a civil suit for preemption against respondent-defendants stating therein that his grandmother Mooli Devi, executed a Will dated 15.05.1954 with regard to disputed the property in his favour and his brothers Bal Kishan and Daulal. Thereafter, his brother Bal Kishan transferred his part of the property to Mohan Singh and Mohan Singh by a registered sale-deed sold the said property to defendant No.2 Tara Devi. Subsequently, Tara Devi transferred the said property in favour of defendant No.1 Nisha Chitlangiya on 14.11.1994. With these averments, appellant prayed for decree of preemption in his favour regarding the suit property as he was having preferential right to purchase the said property.
During pendency of the suit, on 15.10.1998, defendants filed an application under Order 7 Rule 11 CPC before learned trial Court. The learned trial Court, vide judgment and decree dated 08.02.1999, while allowing the application, rejected the plaint. Being aggrieved, the plaintiff filed an appeal before District Judge, Jodhpur, which was transferred to Addl. District Judge No.1 and Addl. District Judge No.1, vide judgment and decree 25.07.2001, quashed and set aside judgment and decree dated 08.02.1999 and remanded the matter back to learned trial Court to decide the matter afresh in accordance with law.
(3 of 7) [CSA-103/2018] Thereafter, on 22.01.2010 defendant No.1 again filed an application under Order 7 Rule 11 read with Section 151 CPC before the learned trial Court inter-alia on the ground that suit is barred by law of Limitation and claim for preemption vis-a-vis common wall against an individual, who is not a co-sharer in the property, is not sustainable. Contesting the application of defendant, plaintiff submitted his reply to refute all the averments. The trial Court, after hearing rival parties, vide judgment and decree dated 22.12.2010, allowed the application and again rejected the plaint. Being aggrieved, the plaintiff filed an appeal before learned appellate Court and the learned appellate Court, while concurring with the findings and conclusions arrived at by the learned trial Court, rejected the appeal vide judgment and decree dated 08.02.2018.
It is submitted by learned counsel for the appellant that both the learned Courts below have committed grave and serious error of law in dismissing the suit on the ground of limitation. It is argued by learned counsel that the question of limitation is a mixed question of law and fact and same cannot be decided without recording evidence of rival parties and thus the learned Courts below have committed manifest error of law constituting a substantial question of law. Learned counsel would urge that in the factual background both the impugned judgments are vulnerable. It is also urged by the learned counsel for the appellant that plaintiff was co-sharer of the disputed property and thus the impugned and decree passed by the both courts below deserves to be quashed and set aside.
(4 of 7) [CSA-103/2018] On the other hand, Mr. Jitendra Chopra, appearing on behalf of respondent-defendants, has submitted that as per Section 6(1) of the Rajasathan Preemption Act, 1966 (for short, 'Act') in respect of any immovable property's transfer shall accrue only to a co-sharer in the property and not in the case of boundary wall of the property between two neighbors. It is further argued by learned counsel for the respondent that the suit is barred by limitation as Section 21 of the Act provides that the period of limitation for a suit of preemption is one year from the date the purchaser has taken possession of the property. Learned counsel would contend that in the instant case, plaintiff's brother Bal Kishan transferred the disputed property to Mohan Singh in 1956 and Mohan Singh by a registered sale-deed sold the said property to defendant No.2 Tara Devi. Learned counsel contends that subsequently, Tara Devi transferred the said property in favour of defendant No.1 Nisha Chitlangiya on 14.11.1994 is sufficient to non-suit the appellant. Learned counsel has argued that the instant appeal is bereft of any question of law much less substantial question of law. Alternatively, learned counsel, Mr Chopra, submits that in view of chronological events suit brought in by the plaintiff is frivolous and vexatious, which has been rightly rejected by both the Courts below with concurrent findings.
In support of his contentions, learned counsel for the respondent has placed reliance on following legal precedents:
1. Shipping Corporation of India Ltd. Vs. Machado Brothers & Ors. [AIR 2004 Supreme Court 2093].
(5 of 7) [CSA-103/2018]
2. Temple of Thakur Shri Mathuradassji Chhota Bhandar V/s.
Shri Kanhaiyala & Ors. [2008 (4) CCC 133 (Rajasthan)]. I have heard learned counsel for the parties, perused both the impugned judgments and also examined the substantial questions of law proposed in memo of appeal.
It is an admitted position that after two successive sale of the property in question, plaintiff has filed the suit for asserting his right of preemption vis-a-vis third sale transaction in favour of original defendant. Undeniably, the first sale of the property took place in the year 1956 followed by second in the year 1987 and the third one impugned in the year 1994. The right of preemption was prevalent during pre-independence era as customary right amongst Hindus and subsequently in the year 1966 a comprehensive law on the subject in the form of Rajasthan Preemption Act, 1966 (for short, 'Act of 1966') came into offing. In general it is considered to be a very weak right and a party claiming such right can abandon the same by conduct. Besides that, Section 21 of the Act of 1966 also envisaged limitation of one year. Therefore, asserting right of preemption at the stage of third sale transaction of the disputed immovable property by plaintiff is per se barred by law of estoppel besides limitation. Besides these admitted facts, there cannot be two opinions that right of preemption claimed by a neighbor against the other neighbor vis-a-vis common wall is not tenable.
(6 of 7) [CSA-103/2018] Assuming it that the grounds urged by the defendant under Order 7 Rule 11 CPC were falling short of the requirements envisaged under various clauses of Rule 11 then too in the considered opinion of this Court continuing proceedings of the suit would be a sheer abuse of the process of the law. It would be imprudent for the Court to continue proceedings in a frivolous and vexatious litigation.
The frivolous litigations are required to be nibbed in the bud at the earliest possible stage to safeguard the rights of adversary in facing the litigation and prolonging his agony. In such cases, even in absence of available grounds under various clauses of Rule 11 of Order 7 CPC Court can very well invoke inherent powers under Section 151 CPC.
In Temple of Temple of Thakur Shri Mathuradassji Chhota Bhandar (supra), the Coordinate Bench has considered this aspect and made following observations:
"15.Totality of the circumstances clearly shows that the plaintiffs filed the suit for taking benefit of procedure provided by the Civil Procedure Code and, therefore, submitted that plaint of the plaintiffs could have been rejected under Order 7 Rule 11 CPC. Under Order 7 Rule 11 CPC plaint can be rejected on the grounds mentioned in the Order 7 Rule 11 CPC like the suit is barred by law or it does not disclose the cause of action or proper court fees has not been paid even after order of the court. If the suit is abuse of process of the court and cannot be dismissed under Order 7 Rule 11 CPC then the court is not helpless and can accordingly invoke the powers under Section 151 CPC and can dismiss the suit under Section 151 CPC. Frivolous litigations are required to be nipped in the bud at the earliest possible stage otherwise no relief to the aggrieved party because of the reason that sole object of the frivolous litigation is to drag adversary in the (7 of 7) [CSA-103/2018] litigation till it is dismissed consuming several years in trial. If court reaches to the conclusion that suit is frivolous from the totality of the facts brought on record or which have come on record then by not dismissing the suit at earliest, the court virtually declares that a frivolous suit can demand trial of suit and aggrieved party has no remedy against frivolous suit. If there are creases in the law or sometimes is left out or not specifically provided in statute then they are required to be ironed out by the courts by interpreting the law in a manner to advance the cause of justice and no party can be left with no remedy against frivolous suits. At the cost of repetition, it is observed that the continuation of frivolous suit against any person on the ground that it cannot be dismissed since there is no provision under Order 7 Rule 11 CPC is virtually denying an aggrieved party his right to crush the frivolous litigation without suffering the trial of suit."
Upon close scrutiny of the matter in the factual backdrop of the instant case, unhesitatingly in my view, the concurrent judgments of both the Courts below cannot be faulted. The substantial questions of law proposed in memo of appeal are pure questions of facts, and therefore, not satisfying the test of real questions of law much less substantial questions of law. It is trite that for entertaining second appeal existence of substantial question of law is sine-qua-non. As observed supra the instant appeal is bereft of any question of law much less substantial question of law, I feel disinclined to interfere with the concurrent judgments of both the Courts below.
Resultantly, appeal fails and same is, hereby, dismissed summarily.
(P.K. LOHRA),J Bharti/34 Powered by TCPDF (www.tcpdf.org)