Rajasthan High Court - Jaipur
Smt.Adarsh Devi vs Suresh Chand & Ors on 8 March, 2013
Author: Amitava Roy
Bench: Amitava Roy
In The High Court Of Judicature For Rajasthan Bench At Jaipur D.B. Civil Special Appeal No.54/1988 Smt. Adarsh Devi v. Suresh Chand & others Date of judgment March 8, 2013 Hon'ble the Chief Justice Mr. Amitava Roy, Hon'ble Dr. Justice Meena V. Gomber Mr. M.M Ranjan, Sr. Advocate, with Mr. Rahul Agarwal, for appellant Mr. R.K. Agarwal, Sr. Advocate, with Mr. Yogesh Pujari, for respondents
[per Hon'ble Gomber, J.] This Special Appeal filed by the appellant Smt. Adarsh Devi, is directed against the concurrent judgment & decree of two courts below dismissing her suit claiming pre-emptory right in view of statutory provisions contained in Section 6(1) of the Rajasthan Pre-Emption Act, 1966 (herein-after to be referred to as 'the Act of 1966'), against the respondents in respect of suit property comprising of the Eastern portion of a residential building situated at 9 Hospital Road, Jaipur.
2. Briefly stated, the facts of the case, in so far as they are relevant for the disposal of the present appeal, are as follows:-
3. The appellant and respondent no.5 are real sisters and they both have inherited a definite specified portion in the suit property (described as Eastern portion and the Western portion shown in the map annexed with the gift deeds) by virtue of two separate gift deeds, executed in their favour by their late father Pt. Shyam Lal ji, more than 50 years ago. The gift deed in favour of the appellant Smt. Adarsh Devi was executed and got registered on 2.7.1957 whereas the gift deed in favour of respondent no.5 was executed and registered on 8.1.1959. The total land area of the suit property was 2667 sq.yds (120x200 feet) situated in 9, Hospital Road, Jaipur. Pt. Shyam Lal ji, being the late father of appellant and respondent no.5 died on 8.2.1967 and more than 7 years after his demise, respondent no.5 entered into an agreement with respondent nos.1 to 4 on 20.2.1974 and agreed to sell Eastern portion of the suit property, which she got in gift from her late father to them for a consideration of Rs.2,31,000/- and received part sale considerations from them on 20.2.1974 and 29.6.1974. It seems that there was some dispute between respondent no.5 on the one hand and respondent nos.1 to 4 on the other, with regard to the sale consideration. The respondent nos.1 to 4 filed a suit for specific performance against respondent no.5 in August 1974 and that suit was decreed by the court on the basis of compromise between the parties in that suit vide decree dated 18.10.1976. Pursuant to the said compromise decree in suit for specific performance, respondent no.5 had executed sale deed of the Eastern portion of the suit property in favour of respondent nos.1 to 4 on 16.11.1976. Shortly thereafter the appellant being the real sister of respondent no.5, had filed a suit for pre-emption against the respondents on 8.3.1977 and alleged in the said suit that she was entitled to enforce her pre-emptory right in respect of the Eastern portion of the suit building sold by respondent no.5 to respondent nos.1 to 4, as according to her, Lawn Porch Varandah and backyard of the suit building, gifted by the late father of the parties, were jointly held by her and respondent no.5. The appellant being the plaintiff in the suit, claimed pre-emptory right in view of the provisions contained in 6(1) of the Act of 1966. Respondent no.5, who is the real sister of appellant and had sold the Eastern portion to respondent nos.1 to 4, did not contest the suit despite notice and was proceeded against ex parte in the trial court. Respondent nos.1 to 4 being the purchasers of the Eastern portion, had filed their written statement denying the right of pre-emption and pleaded, inter alia, that in course of time after the gifts were made, the appellant and respondent no.5 had divided the common Lawn, Porch, Varandah etc., by metes and bounds by erecting a common partition wall. It was stated that there was a complete separation of the Eastern and Western portions and for that reason the appellant had no claim for pre-emption. Respondent nos.1 to 4 had further pleaded in their written statement that they had purchased the Eastern portion (gifted to respondent no.5 by her late father) for manufacturing purposes and was being used by them for that purpose only and, therefore, according to them, no right of pre-emption could otherwise accrue to the appellant under Section 5(1)(iv) of the Act of 1966. It was further pleaded that the appellant as also her husband Dr. Mool Chand, in fact, took active part in negotiations for sale of the Eastern portion by respondent no.5 to respondent nos.1 to 4. According to respondent nos.1 to 4, in fact, the appellant wanted to sell her Western portion to respondent nos.1 to 4 and as the deal for sale of her portion could not materialise with respondent nos.1 to 4 the appellant filed pre-emption suit against them. Respondent nos.1 to 4 had prayed for the dismissal of this suit for pre-emption filed by appellant against them.
4. The trial court framed total 21 issues in the matter. The appellant had examined 15 witnesses and respondent nos.1 to 4 examined 3 witnesses. On the basis of oral and documentary evidence produced by the parties, the suit of the appellant was dismissed by the trial court vide its judgment and decree dated 11.12.1981. It was held by the trial court that no part of the property including Lawn, Porch, Varandah, etc. was jointly held by appellant and respondent no.5 and that they both were seized and possessed of their respective portions of the suit building, which they got in gift from their late father without having any thing joint or common. It was further held that as the Eastern portion of the property was sold by respondent no.5 to respondent nos.1 to 4 for manufacturing purposes, as recited in the sale deed dated 16.11.1976 and proved by evidence, right of pre-emption was not available to the appellant in view of provisions of Section 5(1)(iv) of the Act of 1966.
5. The appellant, being aggrieved by the judgment and decree of the trial court dated 11.12.1981, preferred an appeal being civil first appeal no.52/1982 but was without any success. The appeal being civil first appeal no.52/1982, was dismissed by learned Single Judge vide judgment and decree dated 29.8.1988. It was held by the learned Single Judge that on account of common partition wall between Eastern and Western portions of the suit building, the appellant could probably have pre-emption right, however, the First Appellate Court affirmed the conclusions and findings of the trial court on the point that in view of the provisions contained in Section 5(1)(iv) of the Act of 1966, right of pre-emption was not available to the appellant as the Eastern portion was sold by respondent no.5 to respondent nos.1 to 4 for manufacturing purposes, as was so mentioned in the sale deed dated 16.11.1976 executed in their favour. The First Appellate Court further affirmed the finding of the trial court on the point that there was a total division of the Eastern and the Western portions by erecting a dividing common wall in the Lawn, Porch, Varandah and backyard much before the sale/negotiation for sale of the Eastern portion. In sum and substance, the First Appellate Court had, by and large, agreed with the findings of the trial court on all points as a reason for the dismissal of the appeal.
6. Appellant, being still not satisfied with the concurrent findings of the two courts below against her, has come up in the present Special Appeal and has agitated before us that since the Lawn, Porch, Varandah and backyard in the suit building, were jointly held by her and her sister - respondent no.5 herein, it was incumbent upon respondent no.5 to have offered the Eastern portion for sale to her before selling the same in the open market to respondent nos.1 to 4.
7. We have heard the learned counsel for the parties and have gone through the entire record of both the courts below.
8. In our opinion this appeal has hardly any merit and deserves dismissal for reasons to follow herein-after.
9. On behalf of the appellant, strong reliance has been placed on provisions of Section 6(1) of the Act of 1966 extracted below :-
Persons to whom right of pre-emption accrues-
(1) Subject to the other provisions of this Act, the right of pre-emption in respect of any immovable property transferred shall accrue to, and vest in the following classes of persons namely-:
(i) co-sharers of or partners in the property transferred,
(ii) owners of other immovable property with a stair case or an entrance or other right or amenity common to such other property and the property transferred and;
(iii) owners of property servient or dominant to the property transferred .......
10. It may be seen from the above referred Section 6(1) of the Act of 1966 that the right of pre-emption in respect of any immovable property transferred, is available to co-sharers of or partners in the property transferred; or the owner of an adjoining property only if the stair-case or an entrance or other right or amenity is common between his property and the adjoining property under transfer of the same. In the present case, there are concurrent findings of two courts below against the appellant that there was a complete division of the Eastern and Western portions of the suit building, much before the Eastern portion was sold to respondent nos.1 to 4 by sale deed dated 16.11.1976. Furthermore, there are specific findings of both the courts below that the Lawn, Porch, Varandah and backyard in the suit building were physically divided by erecting a dividing wall between the Eastern and Western portions. The concurrent findings of fact in this regard of two courts below, cannot be interfered with by us exercising our powers and jurisdiction in this appeal before us. Reliance in support of our view is placed on an earlier judgment of this Court in Smt. Suraj Devi v. Sita Devi, 1995 DNJ (Raj.) 275. We are of the view that if there was nothing in common between the Eastern and the Western portions of the suit building then how the appellant could take benefit of Section 6(1) of the Act of 1966 and claim right of pre-emption.
11. There is yet another significant aspect of the matter that the provision of the Act of 1966, itself, which oust a party from claiming right of pre-emption even if the immovable property under transfer, had any area in common with the immovable property of the person claiming pre-emptory right. In this regard, the provision of Section 5(1)(iv) are relevant and are extracted below :-
Section 5.-Cases in which right of pre-emption does not accrue:
(1) The right of pre-emption shall not accrue-
(iv) for the purpose of a manufacturing industry; or .......
A plain reading of the above referred statutory provision, would reveal that if the property is sold for manufacturing industry, the right of pre-emption cannot be claimed.
12. In the present case the sale deed dated 16.11.1976 of the Eastern portion over which right of pre-emption is claimed by the appellant, was sold for manufacturing purposes and respondent nos.1 to 4, being the purchasers have consistently pleaded and proved that even since the date they purchased the Eastern portion, it is being used for the manufacturing purpose - the purpose for which it was purchased. It may be noted that both the courts below have noticed the said recital in the sale deed and also taking note of the oral evidence of the parties on this crucial aspect, have concluded against the appellant that she had no right of pre-emption as the property in question was sold and is being used for manufacturing activities. The counsel for appellant had no answer to our query as to how he can come out of the rigors of Section 5(1)(iv) referred hereto-above. An earlier Division Bench of this Court in the case of Lr's of Smt. Sire Kanwar Maloo v. Shri Daudas Mantri, 2007 (3) DNJ (Raj.) 1661, has categorically held that no right of pre-emption accrues to an owner by common wall. We are in complete agreement with the view taken by the earlier Division Bench decision in the above-referred case. As such, the observation of the First Appellate Court in the impugned judgment and decree dated 29.8.1988 to the effect that the appellant probably could claim pre-emption right on the basis of common wall between the Eastern and the Western portions, is of no legal consequence.
13. For the foregoing reasons, we do not find any merit in this appeal which fails and is hereby dismissed but with no order as to costs.
(Dr. Meena V. Gomber) J. (Amitava Roy) CJ. db
[All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.] Deepankar Bhattacharya PS