Karnataka High Court
Shri Shankar Bhimappa Salagar vs Shri Bhimappa Siddappa Kallolli on 9 August, 2024
IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
DATED THIS THE 9TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 2656 OF 2006 (DEC/INJ)
BETWEEN
1 . SHRI SHANKAR BHIMAPPA SALAGAR
AGED 53 YEARS,
OCC;AGRICULTURE,
R/O VADRATTI 591 304,
NEAR MURAGUNDI,
TALUK;ATHANI,
DISTRICT; BELGAUM,
2. SRHI MURARI SATTEPPA MAGADUM
AGED 71 YEARS,
OCC;AGRICULTURE,
R/O MURAGUNDI 591 304,
TALUK;ATHANI,
DISTRICT; BELGAUM,
2A. SMT SAVAKAKA W/O MURARI
@ MURIGEPPA MAGADUM,
AGE:55 YEARS,
OCC;AGRICULTURE
R/O MURAGUNDI 591259
TALUK;ATHANI,
DISTRICT; BELGAVI,
2B. JAYASHREE D/O MURARI
@ MURIGEPPA MAGADUM,
AGE:28 YEARS,
OCC;AGRICULTURE
R/O MURAGUNDI 591259
TALUK;ATHANI,
DISTRICT; BELGAVI,
2
2C. MAYAKKA D/O MURARI
@ MURIGEPPA MAGADUM,
AGE:24 YEARS,
OCC:HOUSEHOLD
R/O MURAGUNDI 591259
TALUK;ATHANI,
DISTRICT; BELGAVI,
2D. SMT MAHADEVI W/O BHIMA LOKUR
AGE:22 YEARS,
OCC:HOUSEHOLD
R/O MURAGUNDI 591259
TALUK;ATHANI,
DISTRICT; BELGAVI,
...APPELLANTS
(BY SRI SANGRAM S KULKARNI, ADVOCATE FOR A1(NOC)
SRI RAMACHANDRA A MALI AND
SRI SUNIL KHOT, ADVOCATES FOR A2(A) TO A2(D) (NOC) )
AND
1. SHRI BHIMAPPA SIDDAPPA KALLOLLI
AGED 68 YEARS,
OCC;AGRICULTURE,
R/O MURAGUNDI 591 304,
TALUK;ATHANI,
DISTRICT; BELGAUM,
1(A) SMT SHIVUBAI W/O BHIMAPPA KALLOLI
AGE 65 YEARS, OCC: HOUSEHOLD
R/O MURAGUNDI 591 259,
TALUK;ATHANI,
DISTRICT; BELGAUM
1(B) SHRI MURIGEPPA S/O BHIMAPPA KALLOLI
AGE: 40 YEARS, OCC: COOLIE
R/O MURAGUNDI 591 259,
TALUK;ATHANI,
DISTRICT; BELGAUM
1(C) SHRI NALLAWWA W/O KALLAPPA GODEPPAGOL
AGE 38 YEARS, OCC:HOUSEHOLD
R/O MURAGUNDI 591 259,
TALUK;ATHANI,
3
DISTRICT; BELGAUM
1(D) SMT MAYAWWA W/O VITHAL GAVADI
AGE 36 YEARS OCC: HOUSELHOLD
R/O MURAGUNDI 591 259,
TALUK;ATHANI,
DISTRICT; BELGAUM
1(E) BAGAWWA D/O BHIMAPPA KALLOLI
AGE 34 YEARS, OCC: HOUSEHOLD
R/O MURAGUNDI 591 259,
TALUK;ATHANI,
DISTRICT; BELGAUM
2. SHRI SHIVAPPA SIDDAPPA KALLOLLI
AGED 70 YEARS,
OCC;AGRICULTURE,
R/O KURBAR GALLI AINAPUR
591 304,TALUK;ATHANI,
DISTRICT; BELGAUM,
3. SHRI KALLAPPA SIDDAPPA KALLOLLI
AGED 64 YEARS,
OCC;AGRICULTURE,
R/O KURBAR GALLI
AINAPUR 591 304,
TALUK;ATHANI,
DISTRICT; BELGAUM
...RESPONDENTS
(BY SMT SURABHI KULKARNI, ADVOCATE FOR
SRI R M KULKARNI, ADVOCATE FOR R1(A TO E)
SRI CHETAN MUNNALI, AND
SRI LOKESH HEGDE, ADVOCATES FOR R1 (A TO E)
(NOC NOT OBTAINED)
R2 IS SERVED
V/O DTD 16.2.2022 APPEAL ABATED AGAINST R3)
THIS RSA IS FILED U/S 100 CPC AGAINST THE JUDGMENT AND
DECREE DATED: 29.8.2006 PASSED IN RA.NO.46/2005 ON THE FILE OF
THE PRESIDING OFFICER, DISTRICT & SESSIONS JUDGE, FAST TRACK
COURT-I, CHIKODI, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED: 15.4.2005 PASSED IN OS.NO.37/1993
ON THE FILE OF THE CIVIL JUDGE (SR.DN.) & ASST.SESSIONS JUDGE,
ATHANI AND ETC.
4
THIS APPEAL HAVING BEEN RESERVED FOR JUDGMENT ON
25.07.2024 COMING ON FOR 'PRONOUNCEMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:-
CORAM: HON'BLE MR JUSTICE C.M. POONACHA
CAV JUDGMENT
1. The present second appeal is filed under Section 100 of the Code of Civil Procedure, 19081 by the defendants challenging the judgment and decree dated 29.8.2006 passed in RA No.46/2005 by the Fast Track Court-I, (District and Sessions Judge), Chikodi2and the judgment and decree dated 15.4.2005 passed in OS No.37/1993 on the file of the Civil Judge (Sr.Dn) & Assistant Sessions Judge, Athani3 whereunder the suit for declaration and mandatory injunction has been decreed by the Trial Court which has been affirmed by the first appellate Court.
2. The parties will be referred to as per their rank before the trial Court for the sake of convenience.
3. It is the case of the plaintiff that himself and defendant Nos.2 and 3 are brothers. That the suit property was inherited by the plaintiff and defendant Nos.2 and 3 after the 1 Hereinafter referred to as 'CPC' 2 Hereinafter referred to as the 'first appellate Court' 3 Hereinafter referred to as the 'Trial Court' 5 demise of their father. That the plaintiff and defendant Nos.2 and 3 who succeeded to the suit property after the demise of their father were governed by the provisions of the Hindu law prevalent in the region of the State where the Hindus could exercise the right of pre-emption and the said right of preemption was available to the plaintiff against the defendants.
4. That when defendant Nos.2 and 3 proposed to sell and alienate their respective share in the suit property to defendant No.1 who was a stranger, the plaintiff volunteered and expressed his willingness to purchase the same at the rate agreed between the plaintiff and defendant Nos.2 and 3 on one hand and defendant No.1 on the other. The plaintiff having expressed that he was bonafidely intending to purchase and had the capacity to purchase the share of defendant Nos.2 and 3 and being their brother he had a preferential right to purchase the same in the event of transfer by way of sale. That the plaintiff even sent a registered notice to both defendant Nos.2 and 3 as well as defendant No.1 placing on record his intention to purchase the shares of defendant Nos.2 and 3 and all of them received the said notices. That despite the said notice, the Sale Deed dated 28.9.1992 has been executed in favour of defendant No.1 for a 6 total sale consideration of `58,000/- whereunder defendant Nos.2 and 3 transferred their 2/3rd share in the property inherited. Hence, the plaintiff filed a suit for a declaration that he had a preferential right to purchase 2/3rd of the suit property belonging to defendant Nos.2 and 3 and for a mandatory injunction to order defendant No.1 to execute the Sale Deed in favour of the plaintiff selling the property purchased under the registered Sale Deed dated 28.9.1992 and for the other reliefs.
5. Defendant Nos.1 and 4 entered appearance through their counsel and filed separate written statements. Defendant No.1 denied the case of the plaintiff and further stated that he was a bona fide purchaser for value and he purchased the same after exercising due diligence and that the plaintiff never revealed his intention at that time. That after the Sale Deed was executed, the plaintiff issued a notice, but the transaction was over and the name of the said defendants was appearing in the revenue records. Hence, he sought for dismissal of the suit.
6. Defendant No.4 in his written statement denied the case of the plaintiff and further contended that the suit regarding preferential right is not maintainable in law. That defendant No.1 7 executed a registered Sale Deed dated 12.4.1993 in favour of defendant No.4 for a total sale consideration of `34,500/- and hence, defendant No.4 is claming right title and interest by virtue of the said registered Sale Deed dated 12.4.1993. The case of the plaintiff has been denied by defendant No.4.
7. The Trial Court, consequent to the pleadings of the parties framed the following issues:
"1. Whether the plaintiff proves that, he is having preferential right to purchase the 2/3rd share in the suit land?
2. Whether the plaintiff is entitled for mandatory injunction as prayed for?
3. Whether the defendant No.1 proves that, he is bonafied purchaser for value?
4. What Order or Decree?
Addl. Issue No.1.
Whether the Deft.1 and 4 prove that the suit is not maintainable as prayed in their w.s.?"
8. The PA holder of the plaintiff was examined as PW.1 and a witness as PW.2. Exs.P1 to P14 were marked in evidence. Defendant No.1 examined himself as DW.1, defendant No.4 as DW.2 and another witness as DW.3. Exs.D1 to D6 were marked in evidence. The Trial Court by its judgment and decree dated 15.4.2005 decreed the suit and ordered as follows: 8
"The Suit of the Plaintiff is decreed.
2. It is declared that the Plaintiff had a preferential right to purchase the property bearing Sy. No. 1781/2A+2B to an extent of 2/3rd share belonging to Defendant Nos.2, 3 out of measuring 7As-26Gs situated at Murugundi village, Tal. Athani under the provisions of Sec.22 of Hindu Succession Act, 1956.
3. The sale deed executed by the Defendant Nos.2, 3 in favour of Defendant No.1-Shankar Saragar to an extent of their 2/3rd share dtd.28-9-1992 and sale deed alleged to be executed by the Defendant No.1- Shankar in favour of Defendant No.4-Murari Magadum dtd.12-4-1993 are not binding on the rights of the Plaintiff.
4. Consequently, the Defendant Nos.2, 3 are directed to execute the sale deed in favour of the Plaintiff to an extent of their 2/3rd share in the suit property by receiving consideration of Rs.58,000/- with interest @ 6% per annum from the date of the suit to compensate escalation of price, in turn, the Defendant Nos.2, 3 are directed to pay said consideration to the Defendant Nos. 1 and 4 equally.
5. If the Defendants failed to execute the sale deed before the Sub-Registrar, Athani, then Plaintiff is at liberty to get sale deed through process of this Court under the provisions of law by paying necessary stamp duty on the basis of present market value.
6. No order as to costs.9
7. Draw Decree Accordingly."
9. Being aggrieved, defendant Nos.1 and 4 preferred RA No.46/2005. The plaintiff entered appearance in the said appeal and contested the same. The first appellate Court, framed the following points for consideration:
"1) Whether the lower court has failed to raise the proper issues and granted the relief which was not prayed?
2) Whether the lower court erred in appreciating the evidence and position of law and came to wrong conclusion?
3) Whether the lower court has failed to consider the question of limitation?
4) What order?"
10. The first appellate Court by its judgment and decree dated 29.8.2006 dismissed the appeal. Being aggrieved, the present second appeal is filed by defendant Nos.1 and 4.
11. This Court, by order dated 26.9.2008 admitted the appeal and framed the following substantial question of law:
"Whether the lower appellate Court is justified in confirming the judgment and decree passed by the trial Court without framing issues on the question of maintainability, limitation, court fee and valuation?"10
12. The appellants filed a memo dated 25.9.2023 seeking to frame two additional substantial questions of law. The respondents filed objections to the same. This Court, noticing the additional substantial questions of law sought to be urged by the appellants vide memo dated 25.9.2023 and the objections to the same has, vide order dated 2.11.2023 framed the substantial questions of law as sought for reserving liberty to the respondents to point out that the present appeal does not involve such question and hence, vide the said order, in addition to the substantial questions of law framed on 26.9.2008, the following additional substantial question of law was framed:
"Whether the trial Court and the first appellate Court erred in not appreciating the aspect as to whether the plaintiff has waived the right of pre- emption by his conduct and was not entitled to the relief sought in the plaint?"
13. Learned counsel Sri Ramachandra A.Malli and Sri Sangram Kulkarni appearing for the appellants vehemently contend that the right to preemption is a weak right and defendant Nos.2 and 3 having offered the plaintiff to purchase their shares of the property, since the plaintiff was not interested in purchasing the same, the same was then subsequently sold to 11 the appellants. It is further contended that the plaintiff having offered to purchase the suit property from defendant Nos.2 and 3 in the year 1988 and having paid a sum of `10,000/- as earnest money, has received back the said sum and hence, the plaintiff has waived his right under Section 22 of the Hindu Succession Act, 19564 to seek for pre-emption. That the aspect of waiver has not been considered by the first appellate Court despite a specific plea having been taken in the memorandum of appeal in that regard. That both the Trial Court and the first appellate Court gravely erred in appreciating the oral and documentary material on record and in decreeing the suit. It is further contended that the Trial Court and the first appellate Court gravely erred in not noticing the correct legal position with regard to the law of preemption while decreeing the suit of the plaintiff. Hence, they seek for allowing of the appeal and setting aside the judgments passed by both the Courts.
14. Per contra, Smt.Surabhi Kulkarni appearing for respondent No.1 -plaintiff justifies the judgment passed by the Trial Court and the first appellate Court and further contends that defendant Nos.2 and 3 never offered the suit property to the 4 Hereinafter referred to as the 'Act of 1956' 12 plaintiff in the manner as contemplated under Section 22 of the Act of 1956. It is contended that the plea of waiver has not been taken in the written statement and no issue regarding the same was framed by the Trial Court. Further, the defendants have not adequately proved their contention regarding waiver and the material on record do not indicate that the plaintiff had taken back the earnest money of `10,000/- that was admittedly given by the plaintiff. It is further contended that the appellants being defendant Nos.1 and 4 who are not the brothers of the plaintiff they are not entitled to take defences as to the factual aspects of the matter in opposition to the suit of the plaintiff. It is further contended that the additional substantial questions of law framed by this Court on 2.11.2023 are not a substantial questions of law that arise for consideration in the present appeal and hence, seeks for dismissal of the above appeal.
15. Both the learned counsel have relied upon various citations which shall be considered during the course of this judgment, to the extent they are necessary for deciding the question arising for consideration.
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16. After perusal of the judgment of the Trial Court and the first appellate Court, the following is the admitted fact situation:
i. The plaintiff, defendant Nos.2 and 3 succeeded to the suit property i.e., Sy.No.1781/2A and 1781/2B measuring 3 acres 13 guntas and 4 acres 10 guntas, respectively situated at Murugandi village, Athani Taluk5 after the death of their father Siddappa Kallolli and hence, the plaintiff, defendant Nos.2 and 3 were the joint owners of the suit property;
ii. Defendant Nos.2 and 3 executed a registered Sale Deed dated 28.9.1992 (Ex.P4) selling their 2/3rd share in the suit property to defendant No.1 for a total sale consideration of `58,000/-; iii. The plaintiff on the ground that he was entitled to a right of pre-emption under Section 22 of the Act of 1956 filed the suit on 3.2.1993;
iv. Defendant No.1 alienated half portion of the property purchased by him to defendant No.4 vide registered Sale Deed dated 12.4.1993 (Ex.P12) for a total sale consideration of `34,500/-;
v. The Sale Deed - Ex.P12 executed by defendant No.1 in favour of defendant No.4 is after filing the 5 Hereinafter referred to as the 'suit property' 14 suit and on perusal of the order dated 3.3.1993 passed by the trial Court, it is forthcoming that after defendant No.1 appeared through his counsel and when the case was adjourned for service of summons to defendant Nos.2 and 3, defendant No.1 alienated half portion of the property purchased by him in favour of defendant No.4; vi. The plaintiff got issued legal notice dated 7.1.1993 (Ex.P2) to defendant Nos.2 and 3 calling upon them to execute a Sale Deed, which notice has been served on defendant Nos.2 and 3 as per the postal receipt - Ex.P1;
vii. The plaintiff issued notice dated 7.1.1993 (Ex.P3) to defendant No.1.
17. The Trial Court has recorded the following findings:
i) On perusal of postal receipt (Ex.P1), copy of notice (Ex.P2), it reveals that the plaintiff got issued a legal notice to defendant Nos.2 and 3 on 7.1.1993, calling upon them to execute the Sale Deed. The said notice has been duly served on defendant Nos.2 and 3 as per copy of notice (Ex.P3).
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ii) The Sale Deed by defendant Nos.2 and 3 (Ex.P4) has been executed on 28.09.1997 and the suit is filed on 03.02.1993. iii) There is no document to show that
the plaintiff himself voluntarily received an earnest money of `10,000/-. If such being the case, the defendants have to prove all these facts but they failed to prove non-
interest of plaintiff at the time of alienation in favour of defendant No.1 (DW.1).
iv) It seems that without proper enquiry, defendant No.4 (DW.2) purchased 1/3rd share in the suit property and he ought to have made some enquiry about the suit properties, because buyer has to beware before purchasing the suit property.
v) On going through the cross examination of DW.3, he clearly admitted that except Defendant Nos.1 and 4, he did not know other parties to the proceedings. Even he did not know the extent of suit property and he did not know the name of the father of defendant Nos.2 and 3. He never participated in the family transaction 16 of the plaintiff, defendant Nos.2 and 3. He did not know the extent of property purchased by defendant No.1.
vi) DW.3 gave answers in a vague manner. So, I feel evidence of DW.3 will not come to help of defendants. vii) Under the circumstances, I feel the
plaintiff has got preferential right under the principle pre-emption as contended by the plaintiff.
viii) DW.2 admitted that he did not enquire about the pendency of the suit before his vendor. He did not enquire about the partition, title of properties, etc. It seems that defendant No.1 high handedly purchased the property ignoring the provisions of law. Admittedly, DW.1 knew all the brothers of plaintiff and he was acquainted with the affairs of the suit property. Under these circumstances, it is not proper to hold that he is a bonafide purchase.
ix) On going through the order sheet dated 03.03.1993, it reveals that
defendant No.1 appeared before this Court 17 and subsequently, he executed the Sale Deed in favour of defendant No.4. Under this circumstance, the contention taken by defendant Nos.1 and 4, under the principles of bonafide purchaser is not tenable and they failed to prove the said fact.
18. The First appellate Court has recorded the following findings:
i) I do not accept the contention of the learned counsel for the appellants, the Court has granted the relief of the parties without any prayer. Under the changed circumstance, in order to give justice to the parties, the lower Court has directed the defendant Nos.2 and 3 to execute the Sale Deed in favor of plaintiff. Therefore, it cannot be said that the lower Court has committed wrong.
ii) The period of limitation fixed to enforce the right of pre-emption is one year. Right of pre-emption arose when the sale becomes complete. The Sale Deed was executed on 28.09.1992 and the suit was filed on 03.02.1993 within the period 18 of one year. Therefore, the suit is not barred by limitation.
19. It is clear that both the Courts have held that the suit is not barred by limitation and that the notice issued by plaintiff and defendant Nos.1, 2 and 3 was served on them before the execution of the Sale Deed. Both the Courts have also recorded a finding that defendant Nos.1 and 4 are not bonafide purchasers.
20. The right of pre-emption is claimed by the plaintiff by virtue of Section 22 of the Act of 1956, which reads as under:
" 22. Preferential right to acquire property in certain cases.--
(1)Where, after the commencement of this Act, an interest in any immovable property of an intestate, or in any business carried on by him or her, whether solely or in conjunction with others, devolves upon two or more heirs specified in class I of the Schedule, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.
(2)The consideration for which any interest in the property of the deceased may be transferred under this section shall, in the absence of any agreement between the parties, be determined by the court on application being made to it in this behalf, and if any person proposing to acquire the interest is not willing 19 to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incident to the application.
(3)If there are two or more heirs specified in class I of the Schedule proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred.
Explanation.--In this section, "court" means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on, and includes any other court which the State Government may, by notification in the Official Gazette, specify in this behalf."
21. It is further relevant to note that vide notice dated 2.4.1988 (Ex.P6) the plaintiff, on coming to know that defendant Nos.2 and 3 were intending to sell the suit property, intimated the said defendants of his intention to purchase the shares of defendant Nos.2 and 3 in the suit property. The said notice has been served on defendant No.2 and 3 as is noticed from postal acknowledgements (Exs.P7 and P8). It is forthcoming from the said notice Ex.P6 that the same has been issued by plaintiff to his brothers (defendant Nos.2 and 3). In the said notice, it is stated that the plaintiff has learnt that defendant Nos.2 and 3 have entered into an oral agreement with one Shankar Bheemappa Sanadai (defendant No.1). It is the further case of the plaintiff that the said notice (Ex.P6) has been sent to defendant No.1 also 20 and the same has been served on defendant No.1 as is forthcoming from the postal acknowledgment (Ex.P9).
22. It is the contention of the defendants that the plaintiff who had paid an earnest money of `10,000/- pursuant to him expressing his intention to purchase the shares of defendant Nos.2 and 3 in the suit property, since he was unable to pay the sale consideration amount, he took back the said earnest money of `10,000/- in the year 1999. It is thereafter that defendant Nos.2 and 3 executed the registered Sale Deed dated 28.9.1992 (Ex.P4/Ex.D1) in favour of defendant No.1, consequent to which the plaintiff got issued the legal notice dated 7.1.1993 to defendant Nos.2 and 3 (Ex.P2) and also got issued a legal notice dated 7.1.1993 (Ex.P3) to defendant No.1.
23. It is the vehement contention of the learned counsel for the appellants/defendant Nos.1 and 4 that the plaintiff has waived his right of pre-emption. In that regard, the appellants have filed a memo seeking to frame an additional substantial question of law which has been opposed by the respondents. Learned counsel for the respondent/plaintiff responding to the said contention submits that the defendants did not take the plea 21 of waiver in their written statement and hence, the same cannot be considered in the present appeal and the substantial question of law sought to be raised is not a substantial question of law, but is a question of fact.
24. In this context, it is relevant to notice the contention of the appellants that they have taken a specific ground regarding waiver before the first appellate Court. The grounds urged by the appellants in the memorandum of appeal filed before the first appellate Court which are relied upon by the learned counsel for the appellant are extracted hereinbelow for ready reference:
"10. The lower court failed to note that as per the plaint averments the respondents 2 and 3 tried to sell their portion of land and hence the plaintiff issued notice to them in the year 1988 itself. If really it was so the respondent No.1 - plaintiff should have filed an application before the competent court as required u/s 22(1) of the Hindu Succession Act. Having not done so he has lost his right to exercise his alleged right of pre-emption. In other words the plaintiff- respondent no.1 waived his alleged right of pre-emption. Therefore, the court below should have non suited respondent no.1.
11. As per para 7 of the plaint the respondents 2 and 3 tried to sell their portion of land to appellant no.1 in the year 1988 itself and hence respondent no.1 - plaintiff gave registered notice to them in the year 1988 itself. This presupposes that the right to sue accrued to the plaintiff - respondent no.1 in the year 1988 itself. However he filed the present suit on 03.02.1993. Hence the suit was hopelessly barred 22 by limitation. Therefore the suit should have been dismissed in limini."
(emphasis supplied)
25. Further, learned counsel for the appellant has relied upon the statement made by DW.1 (defendant No.1) at para No.4 of his affidavit by way of examination in chief, wherein he has deposed that when defendant Nos.2 and 3 proposed to sell the land, plaintiff paid an advance amount of `10,000/- to defendant Nos.2 and 3 in the presence of one Sri Naroti and defendant No.4 (Sri Murari Magdum). That the advance amount is taken back by the plaintiff as he was unable and had no capacity to purchase the property. That thereafter, the defendant Nos.2 and 3 approached DW.1 and expressed their willingness to alienate the same, consequent to which, he has purchased the suit property for a sale consideration of `58,000/-. In this context, it is relevant to note the cross-examination of DW.1 regarding the said aspect, wherein he has stated as follows:
"17. ...... ¥ÀæwªÁ¢ £ÀA.2,3 EªÀjUÉ ªÁ¢ ©üêÀÄ¥Áà 10,000gÀÆ E¸ÁgÀ ºÀt PÉÆlÖ §UÉÎ vÉÆÃj¸À®Ä zÁR¯É ºÁdgÀ ªÀiÁr¯Áè. CzÉà jÃw ªÁ¢AiÀÄ ºÀwÛgÀ D ¸ÀªÀÄAiÀÄzÀ°è ºÀt EgÀ°¯Áè ªÀÄvÀÄÛ ¥ÀæwªÁ¢ £ÀA.2,3 CªÀ¤UÉ ªÀiÁgÁl ªÀiÁqÀ®Ä EµÀÖ¥ÀnÖzÀÝgÀÄ DzÀgÉ CªÀ£À ºÀwÛgÀ ºÀt«gÀ°¯Áè C£ÀÄߪÀ «ZÁgÀ vÉÆÃj¸À®Ä zÁR¯É ºÁdgÀ ªÀiÁr¯Áè, CzÉà jÃw 10000gÀÆ E¸ÁgÀ ºÀt ªÁ¢UÉ ªÀÄgÀ½ PÉÆqÀ¯Á¬ÄvÀÄ CAvÁ vÉÆÃj¸À®Ä zÁR¯É E¯Áè DzÀgÉ ¸ÀévÀB ªÁ¢ ©üêÀÄ¥Áà ¥ÀæwªÁ¢ £ÀA.2,3 23 EªÀjAzÀ 10000gÀÆ E¸ÁgÀ ºÀt ªÀÄgÀ½ ¥ÀqÉ¢gÀÄvÁÛ£É. D §UÉÎ ¥ÀæwªÁ¢ £ÀA.2,3 £À£Àß ªÀÄÄAzÉ ºÉýgÀÄvÁÛgÉ.. ªÁ¢ ©üêÀÄ¥Áà ªÀÄvÀÄÛ ¥ÀæwªÁ¢ £ÀA.2,3 EªÀgÀ £ÀqÀÄªÉ DzÀAvÀºÀ 10000gÀÆ E¸ÁgÀ ºÀtzÀ ªÀåªÀºÁgÀ £ÀqÉAiÀĪÀ PÁ®PÉÌ £Á£ÀÄ RÄzÁÝV ºÁdgÀ EgÀ°¯Áè CAzÀÄ £ÀqÉzÀAvÀºÀ ªÀiÁvÀÄPÀvÉAiÀÄ ¢£ÀzÀ vÁjÃRÄ, ªÁgÀ, wAUÀ¼À ºÉüÀ®Ä §gÀĪÀÅ¢®è."
26. It is forthcoming that DW.1 has stated in the cross- examination that he does not have any documents to show payment of `10,000/- by the plaintiff to defendant Nos.2 and 3. He further states that he does not have any documents to demonstrate that although defendant Nos.2 and 3 were willing to sell the suit property to the plaintiff, since the plaintiff did not have the requisite financial means, the said sale could not be completed. He further states that there is no document to demonstrate that the sum of `10,000/- has been returned by defendant Nos.2 and 3 to the plaintiff. He further states that he was not present when the talks took place between the plaintiff and defendant Nos.2 and 3 with regard to the sale of the property and he cannot say the date, week and month when the said talks took place.
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27. With regard to the aspect regarding waiver, the learned counsel for the appellant relies on the cross examination of PW.1 dated 22.06.2004, wherein he has stated as follows:
"F PÉøÀ zÁR¯ÁäqÀĪÀÅzÀQÌAvÀ ¥ÀƪÀðzÀ°è £ÁªÀÅ ¤ªÀÄä »¸ÁàzÀ D¹ÛAiÀÄ£ÀÄß Rjâ ªÀiÁqÀ®Ä ¹zÀÝjzÉÝÃªÉ CAvÁ ¥ÀæwªÁ¢ £ÀA.2, 3 EªÀgÀ ºÀwÛgÀ ºÉÆÃV PÉýzɪÀÅ. D ¸ÀªÀÄAiÀÄzÀ°è £Á£Éà ¸ÀévÀ: £Á®ÄÌ d£ÀgÀ ¸ÀªÀÄPÀëªÀÄ PÉýPÉÆAqÉ£ÀÄ. D ¸ÀªÀÄAiÀÄzÀ°è 1) ¹zÀÝ¥Áà ºÉƼɥÁà ¥ÀÆeÁj 2) UÀAUÀ¥Áà ©üêÀÄ¥Áà PÉÆPÀl£ÀÆgÀ 3) ªÀÄÄgÁj ªÀÄUÀzÀĪÀiï ºÁdgÀ EzÀÝgÀÄ. £Á£ÀÄ ªÀÄvÀÄÛ ªÀÄÄgÁj ªÀÄUÀzÀĪÀiï PÀÆrPÉÆAqÀÄ F »AzÉ ªÀÄÄAUÀqÀ ºÀt CAvÁ ¥ÀæwªÁ¢ £ÀA.2, 3 EªÀjUÉ 10000gÀÆ PÉÆnÖzÉݪÀÅ. ¸ÀzÀjà ºÀtªÀ£ÀÄß £ÁªÉà Rjâ ªÀiÁqÀ®Ä DUÀĪÀÅ¢®è CAvÁ ªÀÄgÀ½ ¥ÀqÉ¢¯Áè DzÀgÉ ¥ÀæwªÁ¢ £ÀA.2,3 vÁªÉà ¸ÀévÀB £ÀªÀÄUÉ PÉÆÃqÀ¨ÉÃPÁzÀ 10000 gÀÆ ªÀÄgÀ½ PÉÆnÖgÀÄvÁÛgÉ. CAzÀgÉ ¤.¦.23 £ÉÆÃl¸À PÉÆqÀĪÀÅzÀQÌAvÀ ¥ÀƪÀðzÀ°è ¥ÀæwªÁ¢ £ÀA.2,3 £ÀªÀÄUÉ 10000gÀÆ ºÀt ªÀÄgÀ½ PÉÆnÖgÀÄvÁÛgÉ."
(emphasis supplied)
28. It is forthcoming from the said cross-examination that PW.1 admits that he along with one Murari Magdum (defendant No.4) had approached defendant Nos.3 and 4 to purchase the property and had given a sum of `10,000/-. Further, PW.1 states that because they were unable to purchase the property, he did not take back the said sum. However, he admits that defendant Nos.2 and 3 on their own returned the said sum of `10,000/-.
29. It is clear and forthcoming from the aforementioned that the plaintiff upon his learning regarding the attempt of his brothers (defendant Nos.2 and 3) to sell the suit property has 25 issued a legal notice dated 2.4.1988 (Ex.P6) which was also served upon the intending purchaser. Consequently, it is the specific case of defendant No.1 that the plaintiff had paid an advance amount of `10,000/- to defendant Nos.2 and 3 in the presence of one Sri Naroti and defendant No.4. Further, it is the specific case of DW.1 that since the plaintiff had no capacity to purchase the property, he took back the said money. Although DW.1 in the cross-examination states that he does not have any documents to prove that the plaintiff has paid `10,000/- to defendant Nos.2 and 3, which has been returned by the said defendants to the plaintiff, PW.1 admits in his cross-examination that himself along with defendant No.4 met defendant Nos.2 and 3 and paid the advance amount of `10,000/-, which has been returned by defendant Nos.2 and 3.
30. It is relevant to note that the Trial Court has noticed the contention regarding the plaintiff having given a sum of `10,000/- and has recorded a finding that there is no document to show that the plaintiff himself voluntarily received the earnest money of `10,000/- and that the defendants have not proved the said facts.
26
31. Having regard to the aforementioned, it is clear that the defendants had raised the contention regarding waiver of the plaintiff before the Trial Court and the evidence of PW.1 and DW.1 are noticed herein above. Further, the Trial Court has also recorded a finding at para 17 of its judgment regarding the same. However, the first appellate Court has not considered the said contention regarding waiver although a specific ground regarding the same has been urged in the memorandum of appeal.
32. Learned counsel for the appellant relies on the judgment of the Hon'ble Supreme Court in the case of Raghunath (Dead) by Legal representatives Vs. Radha Mohan (Dead) through Legal Representatives and others6, wherein the Hon'ble Supreme Court has held as follows:
"14. We have given our thoughtful consideration to the aforesaid issue and in order to determine the same, we had, at the inception itself, set out the judgment in Barasat Eye Hospital case [Barasat Eye Hospital v. Kaustabh Mondal, (2019) 19 SCC 767 :
(2020) 4 SCC (Civ) 810] . We have, thus, referred to the earlier judicial view in para 10 of the judgment extracted aforesaid. The historical perspective of the right of pre-emption shows that it owes its origination to the advent of the Mohammedan rule, based on customs, which came to be accepted in various courts largely located in the north of India.
The pre-emptor has been held by the judicial pronouncements to have two rights. Firstly, the 6 (2021) 12 SCC 501 27 inherent or primary right, which is the right to the offer of a thing about to be sold and the secondary or remedial right to follow the thing sold. It is a secondary right, which is simply a right of substitution in place of the original vendee. The pre- emptor is bound to show that he not only has a right as good as that of the vendee, but it is superior to that of the vendee; and that too at the time when the pre-emptor exercises his right. In our view, it is relevant to note this observation and we once again emphasise that the right is a "very weak right" and is, thus, capable of being defeated by all legitimate methods including the claim of superior or equal right.
15. We have to examine the legal question before us in terms of the aforesaid principles. We may notice the observation in Ghanshyam case [Ghanshyam v. Chand Bihari, 2008 SCC OnLine Raj 826 : (2008) 2 RLW (Rev) 1011] which deals with the scenario where at the first instance the right was not exercised apparently on account of lack of financial means and that was held to be no ground to permit exercise of that right at the second stage. The consistent view taken by the Rajasthan High Court, as reflected in not only Ghanshyam case [Ghanshyam v. Chand Bihari, 2008 SCC OnLine Raj 826 : (2008) 2 RLW (Rev) 1011] but also in Rukmani Devi [Rukmani Devi v. Prabhu Narayan, 2007 SCC OnLine Raj 472 : (2007) 4 RLW 2882] and Prahlad Kumar [Prahlad Kumar v. Kishan Chand, 2009 SCC OnLine Raj 796 : (2009) 3 RLW 2441] , has been that the right of substitution is capable of being invoked only at the first instance and does not continue to permeate for an indefinite period of time for each sale transaction. In Ghanshyam [Ghanshyam v. Chand Bihari, 2008 SCC OnLine Raj 826 : (2008) 2 RLW (Rev) 1011] , finding of the High Court was that the plaintiffs claiming pre- emption had waived their rights. In Rukmani Devi [Rukmani Devi v. Prabhu Narayan, 2007 SCC OnLine Raj 472 : (2007) 4 RLW 2882] , where the plaintiff raised the plea of pre-emption on second sale transaction, evidence was led by the defendant that the same plaintiff had earlier refused to purchase the 28 subject property and had on the other hand participated in the sale process. In Prahlad Kumar [Prahlad Kumar v. Kishan Chand, 2009 SCC OnLine Raj 796 : (2009) 3 RLW 2441] , it was found that the plaintiff himself had waived his right of pre- emption in respect of an earlier sale transaction involving the same property. Thus, to this extent, the view taken in the impugned order [Radha Mohan v. Raghunath, 2009 SCC OnLine Raj 5662] seems to charter a new course. The view of the Assam High Court in Kutma Bibi [Kutma Bibi v. Baikuntha Chandra Dutta, 1960 SCC OnLine Gau 16 : AIR 1961 Assam 1] was consistently followed by the Rajasthan High Court.
23. In our view, it would not be appropriate or permissible to adopt legal reasoning making such a weak right, some kind of a right in perpetuity arising to a plaintiff every time there is a subsequent transaction or sale once the plaintiff has waived his right or pre-emption over the subject immovable property. The loss of right mandated under Section 9 of the Act is absolute. A plain reading of the said provision does not reveal that such right can re-arise to the person who waives his right of pre-emption in an earlier transaction. To do so would mean that a person, whether not having the means or for any other reason, does not exercise the right of pre- emption and yet he, even after decades, can exercise such a right. This would create, if one may say, some sort of a cloud on a title and uncertainty as a subsequent purchaser would not know, when he wants to sell the property, whether he can complete the transaction or not or whether a co-sharer will jump into the scene. This is not contemplated in the 1966 Act. This is bound to have an effect on the price offered by a purchaser at that time because he would have an impression of uncertainty about the proposed transaction.
24. We are in agreement with the consistent view taken in the judgments earlier of the Rajasthan High Court. So far as Kutma Bibi [Kutma Bibi v. Baikuntha Chandra Dutta, 1960 SCC OnLine Gau 16 : AIR 1961 Assam 1] is concerned, the factual basis of that decision does not fit with the legal controversy 29 involved in this proceeding. In that case, by a previous transaction the entire land had been sold. It was held in that perspective, that the plaintiff's right as a co-sharer had become disputed in absence of challenge to the previous transaction. We are of the opinion that such a right is available once -- whether to take it or leave it to a person having a right of pre-emption. If such person finds it is not worth once, it is not an open right available for all times to come to that person. The aforesaid being the position, this would itself be an impediment in exercise of the right of pre-emption in a subsequent transaction. This is so since, we find the right of waiver under Section 9 of the said Act is relatable to the transaction and also the person. These provisions may not impede the right of pre-emption in that particular transaction by a particular pre- emptor and the factum of not having exercised such a right to an earlier transaction would amount to the surrender of the right of substitution to such intended pre-emptor.
25. The judgments referred to by the respondent, of Bishan Singh [Bishan Singh v. Khazan Singh, AIR 1958 SC 838] and Barasat Eye Hospital [Barasat Eye Hospital v. Kaustabh Mondal, (2019) 19 SCC 767 :
(2020) 4 SCC (Civ) 810] are only for the proposition that the right of pre-emption is a right of substitution--no doubt exists over this proposition.
The question is whether this right of substitution can be exercised recurringly or only once. Our answer to the query is "only once"."
(emphasis supplied)
33. However, the judgment of the Hon'ble Supreme Court in the case of Raghunath6 is sought to be distinguished by the learned counsel for respondent/plaintiff by contending that the said case arose out of a fact situation wherein the original plaintiff sought to enforce the right of pre-emption after three sale 30 transactions had taken place in respect of the property in question.
34. It is forthcoming from the aforementioned that the parties have adduced evidence regarding waiver and the Trial Court had also recorded a finding regarding the same, but the first Appellate Court has not considered the aspect of waiver. Hence, the additional substantial question of law framed by this Court on 26.9.2008 is required to be considered and adjudicated upon.
35. Although, it is the vehement contention of the learned counsel for the respondent/plaintiff that the additional substantial question of law framed on 2.11.2023 is a question of fact and the said question does not tantamount to a substantial question of law to be considered by this Court while adjudicating the present appeal under Section 100 of the CPC, having regard to the fact that the parties have adduced evidence and the Trial Court has also recorded a finding, as also a ground in that regard has been urged before the first Appellate Court, this Court is required to adjudicate upon the additional substantial question of law framed on 2.11.2023.
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36. In this context, it is relevant to note the settled proposition of law as held in the case of Raghunath6 that the right of pre-emption is a weak right and if the same is not exercised when it was available once, the question of permitting the said right to be exercised repeatedly does not arise. Although, learned counsel for respondent/plaintiff seeks to distinguish the case of Raghunath6 from the facts of the said case by contending that in the said case the right of pre-emption was sought to be enforced after three sale transactions, the principle of law as held in the case of Raghunath6 is squarely applicable to the facts of the present case.
37. As noticed above, the plaintiff had issued notices dated 2.4.1988 (Ex.P6) to defendant Nos.2 and 3, consequent to which the plaintiff had also given a sum of `10,000/- to defendant Nos.2 and 3 which has been returned, as has been admitted by PW.1 who is the son of the plaintiff. It is only thereafter that defendant Nos.2 and 3 have executed the registered Sale Deed dated 28.9.1992 (Ex.P4/D1), consequent to which the plaintiff got issued the legal notice dated 7.1.1993 (Ex.P2). In view of the aforementioned, it is clear that the plaintiff had exercise his right of pre-emption which did not result in a concluded sale 32 transaction. Hence, the question of permitting the plaintiff to exercise the right of pre-emption as contemplated under Section 22 of the Act, 1956 once against does not arise.
38. It is the vehement contention of the learned counsel for the respondent/plaintiff that the above appeal is being prosecuted only by defendant Nos.1 and 4 with defendant No.1 being the purchaser from defendant Nos.2 and 3 in violation of the right of pre-emption of the plaintiff and defendant No.4 being a purchaser of a portion of the property from defendant No.1 during the pendency of the suit and hence, they are not entitled to put forth the contention regarding waiver. However, the said contention is not liable to be accepted in the absence of any specific legal prohibition being pointed out barring defendant No.1 from taking all contentions that defendant Nos.2 and 3 are entitled to take including the contention regarding waiver.
39. It is the contention of the learned counsel for the respondent/plaintiff that as per Section 22, defendant Nos.2 and 3 were required to make their offer to the plaintiff and only then in the event the plaintiff refuses to purchase the property, the defendant Nos. 2 and 3 could convey the same to third persons. 33 That in the present case, since the plaintiff has offered to purchase the property in the year 1988, defendant Nos.2 and 3 have not complied with the requirement under Section 22(1) of the Act, 1956. However, the said contention is liable to be rejected in view of the fact that Section 22(1) does not impose any specific obligation on the seller to offer the property for sale to the other co-owner. Section 22(1) merely stipulates that the other heirs will have a preferential right.
40. Although, learned counsel for the respondent/plaintiff has addressed detailed arguments in justification of the grounds on which the first Appellate Court has dismissed the appeal of the appellants, the question of considering the various other contentions does not arise in view of the finding that the plaintiff has waived his right of pre-emption.
41. A defence was also taken by the defendants that the suit was barred by time. However, both the Courts, noticed that the Sale Deed executed by defendant Nos.2 and 3 in favour of defendant No.1 was on 28.9.1992 and the plaintiff got issued a legal notice on 7.1.1993. That the right of pre-emption was required to be exercised as contemplated under Section 22 of the 34 Act of 1956 within one year and hence, the plaintiff having issued a notice and the suit having been filed on 3.2.1993, the suit is within time, which finding is just and proper.
42. In view of the discussion made above, the additional substantial question of law framed by this Court on 2.11.2023 is answered in the affirmative. Since the said additional substantial question of law has been answered in the affirmative, the question of answering the substantial question of law framed vide order dated 26.9.2008 does not arise.
43. In view of the aforementioned, the following:
ORDER i. The above appeal is allowed;
ii. The judgment and decree dated 29.8.2006 passed in RA No.46/2005 by the Fast Track Court-I, (District and Sessions Judge), Chikodi and the judgment and decree dated 15.4.2005 passed in OS No.37/1993 by the file of the Civil Judge (Sr.Dn) & Assistant Sessions Judge, Athani, are set aside;35
iii. OS No.37/1993 filed by the plaintiff on the file of the Civil Judge (Sr.Dn) & Assistant Sessions Judge, Athani, is dismissed.
No costs.
Sd/-
(C.M. POONACHA) JUDGE Nd/ BS