Delhi District Court
Sh Hem Chand Jain vs Smt. Bimla Devi on 10 April, 2019
: 1 :
IN THE COURT OF DR. SUGANDHA AGGARWAL,
ADDL. DISTRICT JUDGE, WEST,TIS HAZARI, DELHI
CIVIL SUIT NO. 608639/16
1. Sh Hem Chand Jain
2. Sh. Narender Kumar Jain
3. Sh. Milap Chand Jain
All S/O Sh. Dhanpat Singh Jain
R/O 1961, Katra Khushal Rai
Kinari Bazar,
Chandni Chowk, Delhi110006. .........Plaintiffs
Versus
1. Smt. Bimla Devi
W/O Late Sh. Mangtu Lal
D/o Sh. Harak Chand Jain
R/o 17B, New Colony,
Opposite : Sindi School,
M.I Road, Jaipur.
2. Smt. Kamlesh Sharma
W/o Sh. Ajay Sharma
R/O 2979, Masjid Khajoor,
Kinari Bazar, Chandni Chowk,
Delhi110006. .....Defendants
Date of filing the suit : 13.06.2006
Date when reserved for order : 30.03.2019
CS No. 608639/16 Hem Chand Jain vs Bimla Devi etc Page 1 of 27
: 2 :
Date of Order : 10.04.2019
JUDGMENT
1. This judgment shall decide the suit for recovery of possession on the basis of preemption.
Pleadings
2. The facts as averred in the plaint are that Sh. Shri Ram, Sh. Daulat Ram and Sh. Harak Chand were real brothers and joint owners of property bearing no. 1961, Katra Khushal, Kinari Bazar, Delhi110006. The said property was partitioned in the year 1935 vide registered partition deed dated 29.05.1935. As per the said partition deed the property was divided into four shares. Sh. Harak Chand got 1/4th share in the property who transferred the same in favour of his wife Smt. Sona Devi. Defendant no.1 is the daughter of Late Sh. Harak Chand and Smt. Sona Devi. It is further averred that Smt. Sona Devi sold her half share i.e. 1/8th share in the total property which is the subject matter of the present suit (herein after referred to as 'suit property') to defendant no.1 vide registered sale deed dated 23.12.1963.
3. Plaintiffs have further averred that all the parties to the suit except defendant no. 2 have a common ancestor namely Sh. Uttam Chand. As CS No. 608639/16 Hem Chand Jain vs Bimla Devi etc Page 2 of 27 : 3 : per the pedigree in the plaint, plaintiffs are sons of the brother of the father of defendant no.1. It is further averred in the plaint that the property in question in which suit property is situated has a common entrance, joint staircase and common right to use passage, main entrance, well, W.C, courtyard on ground floor, staircase leading from ground floor to top floor and W.C on first and second floor. It is further averred that the suit property and portions of the plaintiffs have common wall in between and beams of the roof are raised on joint wall. It is stated that in view of the above facts, plaintiffs had a right to pre emption on the basis of contiguity as per section 16 (vi) of the Punjab PreEmption Act, 1930 (herein after referred to as 'the Act') . It is also averred that custom of preemption exists in the area where the suit property is situated, therefore, plaintiffs are entitled to exercise their right of PreEmption. Plaintiffs have further averred that they had shown their interest in the purchase of the suit property but defendant no.1 sold the suit property to defendant no. 2.
4. It is further averred in the plaint that plaintiffs came to know about the intention of defendant no.1 to sell the suit property in the second week of January, 2006. Immediately, plaintiffs communicated their intention to purchase the suit property to defendant no.1 thereby asserting their right of preemption. However, defendant no.1 refused to CS No. 608639/16 Hem Chand Jain vs Bimla Devi etc Page 3 of 27 : 4 : sell the suit property to the plaintiffs and instead sold the suit property to defendant no. 2. It is further averred that defendant no.1 could not have denied plaintiffs right to preemption as Smt. Sona Devi i.e. mother of defendant no.1 has also sold her other half portion to the predecessor in interest of the plaintiffs. Subsequently, when plaintiffs came to know that defendant no.1 has sold the suit property to defendant no. 2 by registered sale deed they were constraint to file the present suit in exercise of their right of preemption.
5. Separate written statements were filed on behalf of defendant no. 1 and defendant no. 2. In the written statement, defendant no.1 has admitted the family pedigree and the factum of partition as averred in the plaint. Defendant no.1 further admitted that she became owner of the suit property as the same was sold to her by her mother. However, it is contended on behalf of defendant no.1 that plaintiffs have no locus standi to file the present suit and this court has no jurisdiction to try the present suit. It is further averred that the suit is not valued properly for the purpose of court fees and jurisdiction and does not disclose any cause of action in favour of the plaintiffs. Defendant no.1 has further stated that she was the absolute owner of the suit property and completely authorized to sell the same to defendant no. 2. It is averred that the suit property after sale is owned by defendant no. 2 and defendant no.1 has CS No. 608639/16 Hem Chand Jain vs Bimla Devi etc Page 4 of 27 : 5 : no concern with the same, therefore, the suit is bad for misjoinder of parties i.e. defendant no.1. It is further stated that suit property consists of shop also and is not entirely residential in nature. Defendant no.1 has also stated that before selling the suit property to defendant no. 2, plaintiffs were duly informed about the intention of defendant no.1 to sell the suit property. It is only when plaintiffs denied to purchase the suit property on the terms and conditions of defendant no.1 that the suit property was sold to defendant no. 2.
6. Defendant no. 2 has taken similar preliminary objections in the written statement as taken by defendant no.1. Further, it is averred that defendant no.2 is bonafide purchaser. It is further averred that defendant no. 2 is not aware about the family partition as averred in the plaint. However, it is denied that plaintiffs had the right of preemption to purchase the suit property.
7. Plaintiffs filed separate replications to the written statement filed by defendant no. 1 and 2 wherein they reaffirmed and reasserted the contents of plaint and denied all the submissions made by defendants.
Issues
8. After completion of the pleadings, my Ld. Predecessor framed CS No. 608639/16 Hem Chand Jain vs Bimla Devi etc Page 5 of 27 : 6 : following issues on 22.08.2014:
Issue no. 1: Whether the suit filed by the plaintiff is not maintainable in view of preliminary objections raised by the defendant in their written statement ? OPD Issue no. 2: Whether the suit filed by the plaintiff has become infructous in view of the sale deed dated 01.02.2006? OPD Issue no. 3: Whether the plaintiff is entitled for decree of possession by preemption as prayed for? OPP Issue no. 4: Relief Plaintiff's Evidence
9. In order to prove their case, plaintiffs have examined plaintiff no. 1 Sh. Hem Chand Jain as PW1. He has tendered his affidavit in examinationinchief as Ex.PW1/A wherein he reaffirmed the contents of the plaint on oath. PW1 has relied upon following documents:
(a) Original sale deed dated 27.08.1952 as Ex. PW1/1 (OSR).
(b) Site plan as Ex. PW1/2.
(c) Another site plan as Ex. PW1/3.
(d) Certified copy of judgment dated 27.05.1953 as Ex. PW1/4.
10. PW1 was crossexamined on behalf of defendant no. 2, not cross CS No. 608639/16 Hem Chand Jain vs Bimla Devi etc Page 6 of 27 : 7 : examined despite opportunity on behalf of defendant no.1 and then discharged.
11. Plaintiff also examined Sh. R.S Yadav as PW2. He has tendered his affidavit in examinationinchief as Ex.PW2/A. PW2 is an Architect by profession. He has deposed regarding the drafting of the site plan Ex. PW1/2. He identified the said site plan and also his signatures on the same at point A. PW2 was crossexamined on behalf of defendant no. 2, not crossexamined despite opportunity on behalf of defendant no.1 and then discharged. No other witness was examined by plaintiffs. Thereafter PE was closed.
Defendant's Evidence
12. In order to prove his case, defendant no.2 examined Sh. Ajay Sharma as D2W1. He has tendered his affidavit in examinationinchief as Ex.D2W1/A wherein he reaffirmed the contents of written statement of defendant no.2 on oath. He has relied upon the following documents:
(a) Power of attorney dated 29.10.2014 as Ex. DW2/1.
(b) Sale deed dated 01.02.2006 as Ex. DW2/2 which is already exhibited as Ex. PW1/D1.
(c) Sale deed dated 12.12.1963 as Ex. DW2/3.
He was crossexamined on behalf of all the plaintiffs and then CS No. 608639/16 Hem Chand Jain vs Bimla Devi etc Page 7 of 27 : 8 : discharged. No other witness was examined by defendant no. 2. Hence, evidence on behalf of defendant no.2 was closed. No evidence was lead by defendant no.1 . Hence, DE was closed.
Arguments
13. I have heard the arguments addressed on behalf of parties. Both the parties have filed their written arguments.
14. Ld. Counsel for the plaintiff has argued that the relationship of parties is not denied. It is further argued that the plea that Punjab Pre Emption Act, 1913 does is not applicable does not survive in view of order dated 09.11.2011 passed by Hon'ble High Court of Delhi. It is further argued that the Punjab PreEmption Act, 1913 is still in vogue in Delhi. It is further argued that as per section 30 of the Act the limitation period to file the present suit is one year from the sale of urban immovable property. Present suit has been filed within one year from the date of sale deed in favour of defendant no. 2. Hence, suit is not barred by limitation.
15.Counsel for plaintiff has further stated that the plea of the defendant that the suit is not maintainable after execution of sale deed is also misconceived in view of section 21 of the Act. In this regard, Ld. CS No. 608639/16 Hem Chand Jain vs Bimla Devi etc Page 8 of 27 : 9 : Counsel for the plaintiff has also relied upon the judgment passed by Hon'ble Apex Court in the case of Bishan Singh vs Khazan Singh;
AIR 1958 SC 838 and the judgment passed by the Hon'ble High Court of Allahabad in the case of Govind Dayal vs Inayatullah; ILR 7 ALL
776. It is further argued that as per section 7 of the Act a right of pre emption exists in an urban immovable property in any town or sub division if it is proved that there was a custom of preemption in the said town or sub division. It is argued that in various judicial precedents the higher courts have recognized the existence of right of preemption in the city of Delhi. Therefore, this court may take a judicial notice of the said fact as per section 57 of Indian Evidence Act. In this regard, Ld. Counsel for the plaintiff has referred to the judgments passed by the Hon'ble Apex Court in the cases of Bhau Ram vs B.Baijnath Singh;
AIR 1962 SC 1476 and Ujagar Singh vs Jeo; AIR 1959 SC 1041. Ld. Counsel has also referred to the judgment passed by the Hon'ble High Court in the case of Sumitra Devi vs Rameshwar Dayal & ors; 36 (1998) DLT 217. It is further argued that as per section 19 of the Act defendant no. 1 was required to give a written notice to the plaintiff expressing her intention to sell. However, she sold the suit property without giving any such notice to the plaintiffs. It is argued that as per the site plan the suit property has common entrance, common walls and CS No. 608639/16 Hem Chand Jain vs Bimla Devi etc Page 9 of 27 : 10 : common staircase. The said fact is duly proved by the testimony of PW
2. It is further argued that contrary to this neither of the defendants stepped into the witness box. Only one witness was examined on behalf of defendants i.e. husband of defendant no. 2. As per his testimony, he was not present at the relevant time. Hence, his testimony cannot be considered by the court. Ld. Counsel for the plaintiff has referred to the judgment passed by the Hon'ble Supreme Court in the cases of Janki Vashdeo Bhojwani and Ors. vs Indusind Bank Ltd and ors; AIR 2005 SC 439 and Man Kaur (dead) by Lrs vs Hartar Singh Sangha; (2010) 10 SCC 512. It is further argued that the objection raised by the defendants that relief of declaration should have been sought is also not maintainable. It is averred that as per the judicial pronouncements the preemptor steps into the shoes of vendee. Hence, there is no requirement for seeking cancellation of sale deed and simpliciter prayer of possession is maintainable. It is argued that in view of the above facts the suit may be decreed in favour of plaintiff.
16.Per contra, Ld. Counsels for the defendants have argued that as per the case of the plaintiff himself the suit property consists of shops also. As per section 5 of the Punjab PreEmption Act, 1913 no right of pre emption exists in case of a shop. Therefore, plaintiff cannot claim the right of preemption in the suit property. It is further argued that PW2 CS No. 608639/16 Hem Chand Jain vs Bimla Devi etc Page 10 of 27 : 11 : has stated in the testimony that he has not visited the suit property and has visited the portion in possession of plaintiff no. 1 only. Therefore, the site plan drafted by him cannot considered to ascertain if the walls and beams of the suit property are common with portion of plaintiffs. It is argued that there is no other evidence adduced by the plaintiffs to prove the said fact. Ld. Counsels for the defendants have argued that testimony of PW1 shows that he is not aware about the partition pleaded in the plaint and therefore, he has failed to prove his ownership regarding the area adjoining to the area which is subject matter of present suit. Further, Ld. Counsels for defendants have referred to certain judgments with respect to limitation which are as follows:
(a) Surinder Kaur vs Ram Narula and Ors; CS (OS) No 651 of 2009
(b) Sarabjit Kaur (smt.) and Ors. Vs Mohinder Singh and Anr;
decided on 20.05.2008@@@@
(c) Shivraj Krishan Gupta vs Chander Krishan Gupta and ors;
CM(M) 1063/2012 decided on 01.02.2013.
(d) Nagappan vs Ammasai Gounder; CA No. 794 of 2003; decided on 05.10.2004
(e) K. Jagannathan vs A.M Vasudevan Chettiar; AS No. 1062 of 1986; decided on 25.01.2001 CS No. 608639/16 Hem Chand Jain vs Bimla Devi etc Page 11 of 27 : 12 : Findings
17. I have considered the rival contentions and have perused the record. My issuewise findings are as follows: Issue no. 2: Whether the suit filed by the plaitniff has become infructous in view of the sale deed dated 01.02.2006? OPD
18. Onus of proving this issue was upon defendant. Defendants have stated that the present suit is filed after the execution of sale deed in favour of defendant no.2. It is argued that the right of preemption has to be exercised when the sale transaction is pending. Once sale is concluded then no right of preemption vests in any person. However, section 30 of the Act provides that the limitation period to file a suit asserting right of preemption will start running from the date on which the vendee takes physical possession of the property sold. Further, the Hon'ble Apex Court in the case of Bishan Singh vs Khazan Singh (supra) has discussed the nature of right of preemption at length. In the said case, the Hon'ble Apex Court has held that a preemptor has a primary right of preemption as well as a secondary right of pre emption. It is held that the preemptor has a primary right of pre emption to assert his right when the property is offered for sale. It is further held that the preemptor has a right to follow the sale transaction also and can assert his right after the conclusion of sale and CS No. 608639/16 Hem Chand Jain vs Bimla Devi etc Page 12 of 27 : 13 : the same is secondary right of preemption. Hence, in view of the findings of the Hon'ble Apex Court in the case of Bishan Singh vs Khazan Singh (supra) it is clear that the plaintiffs have the right to sue even after the execution of the sale deed. Hence, present issue is decided in favour of plaintiffs.
Issue no. 1. Whether the suit filed by the plaintiff is not maintainable in view of preliminary objections raised by the defendant in their written statement ? OPD Issue no. 3: Whether the plaintiff is entitled for decree of possession of by preemption as prayed for? OPP
19. Both these issues are decided together as findings for both these issues are overlapping. Onus of proving issue no. 1 was upon the defendants and of proving issue no. 3 was upon plaintiffs. Plaintiffs have filed the present suit asserting their right of preemption over the suit property. Plaintiffs have sought recovery of possession of the suit property stating that they had a right of preemption in the suit property and therefore, defendant no.1 has erred in selling the suit property to defendant no.2 without offering the same to the plaintiffs before selling. This is admitted fact that all the plaintiffs and defendant no.1 has a common ancestor. It is also admitted fact that defendant no.1 become owner of the suit property as the same was given to her by her CS No. 608639/16 Hem Chand Jain vs Bimla Devi etc Page 13 of 27 : 14 : mother. The facts regarding the partition of the entire property into four shares and the manner in which the suit property had fallen to the share of defendant no.1 is also admitted by the parties.
20.As per version of plaintiffs, all the plaintiffs and defendant no.1 are having common ancestor. The suit property and the property belonging to the plaintiffs are having common entrance, common staircase and common passage , therefore, plaintiffs have preferential right to purchase the suit property on the basis of preemption. Per contra, defendant no.1 has stated that before selling the suit property to defendant no.2 she has offered the same to plaintiffs. However, no positive response come forward from the plaintiffs, therefore, she sold the suit property to defendant no. 2. Onus of proving the fact that the plaintiffs have right of pre emption was upon the plaintiffs. In view of findings on issue no.1 and order dated 09.09.2011. passed by Hon'ble High Court it is already ascertained that the provisions of Punjab Pre emption Act, 1913 will be applicable to the present suit. Hence, now this court has to determine whether plaintiffs have proved the conditions required to be fulfilled to exercise the right of pre emption as mentioned in the Act.
21.In order to ascertain the same it is important to first refer to the CS No. 608639/16 Hem Chand Jain vs Bimla Devi etc Page 14 of 27 : 15 : relevant provisions of the Act. Section 4 of the Act defines the right of preemption and states that it means a right of a person to acquire any urban immovable property in preference to other person, and it arises in respect of such land only in case of sales or of foreclosure of the right to redeem said property. Section 5 of the Act classifies that class of immovable property on which no right of pre emption will be applicable which reads as under: " No right of preemption in respect of certain buildings No right of preemption shall exist in respect of the sale of or the foreclosures of a right to redeem
a) a shop, serai to katra;
b) a dharmsala, mosque or other similar building
22. Thereafter, another condition for exercising the right of preemption is the existence of the custom to that effect in the town or subdivision where the urban immovable property is situated. The relevant provision in this regard is section 7 of the Act which is reproduced herein as under: " Exist under certain conditions in urban immovable property Subject to the provisions of section 5 a right of preemption shall exist in respect of urban immovable property in any town or subdivision of a town when a custom of preemption is proved to have been in existence in such town or subdivision at the CS No. 608639/16 Hem Chand Jain vs Bimla Devi etc Page 15 of 27 : 16 : time of commencement of this Act, and not otherwise.
23. Thereafter, section 16 of the Act classifies the category of person in whom the right of preemption shall vest in case of urban immovable property which reads as under: "Person in whom right of preemption vests in urban immovable property The right of pre emption in respect of urban immovable property shall vest firstly, in the cosharers in such property, if any; secondly, where the sale is of the site of the building or other structure, in the owners of such building or structure;
thirdly, where the sale is of a property having a stair case common to other properties. In the owners of such properties;
fourthly, where the sale is of property having a common entrance from the street with other properties, in the owners of such properties;
fifthly, where the sale is of a servient property, in the owners of the dominant property, and vice versa;
sixthly, in the person who own immovable property, contiguous to the property sold.
24. From the above provisions, it is clear that in order to claim right of preemption plaintiffs have to prove that their case falls in one of the categories given in section 16 of the Act and the suit property does not CS No. 608639/16 Hem Chand Jain vs Bimla Devi etc Page 16 of 27 : 17 : consists of shops, sarai to katra. Further plaintiffs had to prove that the area where the suit property situated has custom of preemption. In order to prove said averments, plaintiff has examined two witnesses. As per the case of plaintiff, the right of preemption lies in the suit property as it has common stair case, entrance and common passage with the properties of plaintiffs . Therefore, it is stated that as per section 16, (thirdly) and (fourthly) of the Act, the right of preemption will vest with the plaintiffs. In order to prove that there is a common staircase and common entrance, plaintiffs have filed the site plan and has examined draftsman of the site plan as PW2. PW2 has identified the site plan drafted by him as Ex. PW1/2. During crossexamination, PW2 has specified that he has not seen anything at the site and he took measurement of the portion which were in the possession of the plaintiff no.1 only. Further, a reading of entire crossexamination of PW2 will show that site plan Ex. PW1/2 has been prepared by PW2 only after visiting the portions which were in possession of plaintiff no. 1. PW2 has specifically stated in his crossexamination that he is not aware whether there is common wall or not in between the suit property and the portion adjacent to it. PW2 has specifically stated that he has not visited the suit property inside and has visited the same only from outside. In fact, in the crossexamination PW2 has admitted that suit property is separate from the other portions of the property in which it CS No. 608639/16 Hem Chand Jain vs Bimla Devi etc Page 17 of 27 : 18 : is situated. Hence, from the crossexamination of PW2, it is clear that there is no evidence on record to show that the suit property and properties belonging to plaintiffs are having common staircase, common passage, common pillars and common beam. The site plan filed on record only shows that the suit property is situated in the same building in which portions of plaintiffs are situated. PW1 also in his cross examination has admitted that the site plan was prepared by architect while sitting at Tis Hazari Court and the Architect has not visited the suit property. It is further admitted by PW1 in his crossexamination conducted on 02.09.2015 that the passage of both the properties ie. suit property and property belonging to plaintiff no. 1 is separate from inside. The said testimony and the site plan shows that there is no evidence on record to show that the suit property has common staircase, common passage, common beam so as to give right of preemption to the plaintiffs as per section 16 of (thirdly) and (fourthly) of the Act. Plaintiffs have also claimed their right of preemption as per section 16 (sixthly) of the Act which providess that a person who owns immovable property , contiguous to the property sold will have right of preemption which means a person having property adjoining to the property sold will have a right of the property sold. As already discussed , plaintiffs have failed to prove the fact that the suit property is adjacent to their properties . Hence, plaintiffs cannot claim right of preemption on the basis of CS No. 608639/16 Hem Chand Jain vs Bimla Devi etc Page 18 of 27 : 19 : contiguity as provided in Section 16 (sixthly) of the Act. Perusal of record shows that in paragraph no. 5 of the plaint, it is averred that properties belonging to the plaintiffs and the suit property have common entrance, staircase, walls and beams etc. In reply to said paragraph in the written statement, both the defendants have specifically denied that the properties are adjacent to each other or they are having common entrance, staircase, walls and beams etc as averred in the plaint. Hence, it was incumbent upon the plaintiff to prove the said fact by preponderance of probabilities. However, in view of the above discussion, it is clear that there is not even an iota of evidence on record to prove the said fact.
25. Besides this, as per the provisions of Section 16 of the Act, a person who owns the property falling in either of the categories given in the section will have a right to preemption. Hence, besides proving that the suit property is contiguous to other properties, plaintiffs had to prove that they are the owners of said other properties. There is no averment in the plaint or evidence on record to show that plaintiffs are the owners of the properties situated near the suit property. It is stated in the plaint that father of plaintiff no.1 to 3 and father of plaintiff no. 4 have received their respective portions by way of partion. The said averment is not denied by defendant no.1 and defendant no. 2 has stated that he CS No. 608639/16 Hem Chand Jain vs Bimla Devi etc Page 19 of 27 : 20 : has no knowledge of the same. Hence, fact that the other portions were owned by plaintiff's father is duly established. However, in paragraph 4 of the plaint, plaintiffs have mentioned as to how the suit property has devolved upon defendant no.1. But there is not even an averment in the entire plaint that other properties were devolved upon plaintiffs. It is not stated whether the plaintiffs have received their portions from the their predecessors and if they have received the same, then in what manner i.e. by succession or WILL or sale. Plaintiff no.1 has examined himself as PW1. In his examinationinchief also, PW1 has nowhere deposed that he has become owner of the portion situated in the building in which suit property situated. In fact, during crossexamination PW1 has deposed that he was not present at the time of execution of the partition deed. Hence, plaintiffs have neither pleaded nor proved that they are owners of the properties which are alleged to be contiguous to the suit property. If the crossexamination of PW1 is read as whole, then it will clearly establish that PW1 himself has never visited the suit property from inside nor he is aware about the structure of properties. It is also clear from his testimony that suit property consisted of shops and there is no evidence to show that plaintiffs owned the portion contiguous to the suit property. Crossexamination of PW1 has further established that the site plan Ex. PW1/2 filed on behalf of plaintiffs is not prepared after visiting the suit property. Hence, the testimony of PW1 itself is CS No. 608639/16 Hem Chand Jain vs Bimla Devi etc Page 20 of 27 : 21 : fatal to the case of plaintiffs. Plaintiffs have not proved that any circumstance as envisaged in section 16 of the Act exists or that they are the owners of any such portions.
26. The other condition to assert the right of preemption is that the suit property shall not consists of shops and serai to katra. In the present case, perusal of the site plan Ex. PW1/2 which is filed by plaintiff himself shows that suit property consists of shop. Perusal of Ex. PW1/2 shows that suit property is shown in red colour and the portion shown in red colour at the ground floor consists of two shops. Hence, from the site plan filed by plaintiff it is established that the suit property consists of shops. PW1 also admitted in his crossexamination dated 29.07.2016 that one of the portion in possession of the plaintiffs which is claimed to be adjacent to the suit property is also used as office. From the testimony of the witness and from the site plan Ex. PW1/2, it is clear that the suit property consists of shops. PW1 in his crossexamination dated 02.09.2015 has deposed that suit property consisted of shop when the same was purchased by defendant no. 2. Hence, it is clear that on the date of purchase when the plaintiff was entitled to right of pre emption the suit property consisted of shops. Thus, the suit property is urban immovable property consisting of shops, hence, as section 5 of the Act, no person can have a right of pre emption in the suit property.
CS No. 608639/16 Hem Chand Jain vs Bimla Devi etc Page 21 of 27 : 22 :27. Defendants have taken certain preliminary objections in their written statements. It is averred that neither plaintiffs have locus standi to file the present suit nor there is any cause of action in favour of plaintiffs. As already discussed above, plaintiffs have failed to prove that they are the owners of any such property which falls in the category mentioned in Section 16 of the Act, therefore, they have no locus standi to file the present suit nor any cause of action has accrued in their favour. Hence, the objection of the defendants is duly established.
28. Further, it is stated that this court has no jurisdiction to try the present suit nor the suit for preemption is maintainable under the law. It is also averred that the suit is not properly valued for the purpose of court fees and jurisdiction. Only a vague submission is made that this court has no jurisdiction. It is not explained as to how this court lacks jurisdiction to try the present suit. It is also not stated as to how the valuation is incorrect. No evidence is lead by the defendants to prove that the valuation of the suit property done by the plaintiffs is incorrect. Hence, the said objection is not tenable. Further, the Hon'ble High Court vide its order dated 09.09.2011 has already observed that the provisions of the Act are applicable to the present suit, hence, there is no requirement of deciding the said objection.
CS No. 608639/16 Hem Chand Jain vs Bimla Devi etc Page 22 of 27 : 23 :29. Further, it is averred that the present suit is bad for misjoinder of parties as defendant no. 1 had already sold the suit property to defendant no. 2 and she has no concern with the suit property. However, the said objection is also not maintainable as the right to preemption is claimed against defendant no.1 only. However, misjoinder of parties will not effect the maintainability of the suit. Hence, suit cannot be dismissed on this ground.
30. Defendant no. 2 has also stated that plaintiffs have failed to prove prevalence of custom of preemption in the area where suit property is situated. However, it is pleaded in the plaint that there is a custom of preemption in the walled city of Delhi. Defendants have not lead any evidence to controvert the said pleading nor PW1 has been cross examined on the said aspect. Counsel for the plaintiffs has placed on record certain judgments passed in the cases titled as Bhau Ram vs B.Baijnath Singh; AIR 1962 SC 1476, Ujagar Singh vs Jeo; AIR 1959 SC 1041 and Sumitra Devi vs Rameshwar Dayal & ors; 36 (1998) DLT 217. Perusal of said judgments shows that right of pre emption is recognized in Delhi and court can take judicial notice of same as per section 57 of Indian Evidence Act. Hence, even if there is no evidence adduced to prove the said fact then also it is duly established CS No. 608639/16 Hem Chand Jain vs Bimla Devi etc Page 23 of 27 : 24 : from the judgments of the Higher courts that the custom of preemption is followed in walled city of Delhi. The suit property is situated in Delhi and therefore, there is a custom of exercising right of preemption with respect to the suit property.
31. Perusal of record shows that plaintiffs have filed the present suit seeking recovery of possession of suit property from defendant no. 2. It is prayed that plaintiffs had a preferential right to purchase the suit property from defendant no.1 on the basis of preemption, therefore, they shall be handed over the possession of the suit property. At the initial stage, defendants have raised the objection that a simpliciter suit seeking recovery of possession without seeking declaration of the title and cancellation of the sale deed executed in favour of defendant no. 2 is not maintainable. Owing to the said objection plaintiff moved an application under Order VI Rule 17, CPC for amendment of the plaint and to add above mentioned reliefs. However, the said application was dismissed by the court. Defendants have argued that the suit in the present form is not maintainable. Per contra, counsel for the plaintiff has argued that the amendment application was moved only as abundant caution. Further, it is argued that the preemptor steps into the shoes of vendee and therefore, there is no requirement of seeking the relief of declaration. Counsel for the plaintiff has relied upon the CS No. 608639/16 Hem Chand Jain vs Bimla Devi etc Page 24 of 27 : 25 : judgment passed by the Hon'ble High Court of Allahabad in the case of Govind Dayal vs Inayatullah (supra) and by the Hon'ble Apex court in the case of Bishan Singh vs Khazan Singh (supra).
32. In both the above mentioned cases, the Hon'ble Apex Court as well as Hon'ble High Court of Allahabad has held that in case of preemption the preemptor steps into the shoes of the vendee. Though it is held that there is no fresh contract of sale and it is a right of substitution but at the same time it is also held that the preemptor has to offer to pay the sale consideration to the vendee as paid by him to the vendor and also has to claim his substitution as owner of the property in question. Hence, it is clear that though there is no requirement of seeking cancellation of sale deed executed in favour of vendee but the pre emption has to seek declaration of his right of ownership on the basis of preemption and also has to offer to pay the sale consideration to the vendee. There is no fresh contract of sale but there is substitution and the preemptor has to seek declaration for the said substitution. A simpliciter suit for possession will not lie. Decreeing the said suit in favour of plaintiffs will lead to chaos and confusion as the defendant no. 2 will remain the title holder of the suit property and the plaintiffs will be in possession of same without any right, title or interest. Further, if plaintiffs want to be substituted then the vendee i.e. defendant no. 2 CS No. 608639/16 Hem Chand Jain vs Bimla Devi etc Page 25 of 27 : 26 : should be compensated by receiving the sale consideration paid by him at the time of original sale. The fact that plaintiffs earlier moved an application seeking amendment for adding the said relief of declaration shows that even plaintiffs were conscience of the fact that the relief of declaration is essential for maintainability of the suit. Hence, the suit filed by the plaintiffs merely for recovery of possession is not maintainable.
33. From the above discussions, it is clear that there is a custom of pre emption prevalent in Delhi and the provisions of the Act will be applicable to the suit property. However, plaintiffs have failed to prove that they are the owners of any such property which falls under any of the categories mentioned in section 16 of the Act. Further, it is established from the testimony of PW1 and PW2 as well as from site plan Ex. PW1/2 that the suit property consists of shops. Therefore, as per section 5 of the Act the right of preemption cannot be exercised with respect to suit property. Further, the suit itself is not maintainable in the present form as plaintiffs has prayed merely for recovery of possession. Therefore, both these issues are decided against the plaintiffs.
CS No. 608639/16 Hem Chand Jain vs Bimla Devi etc Page 26 of 27 : 27 :Issue no. 4: Relief
34. In view of findings on above issues, suit of plaintiff is dismissed. No order as to cost. Decree sheet be prepared accordingly. File be consigned to record room after completion of necessary formalities.
Sugandha Aggarwal ADJ/West/Delhi 10.04.2019 This judgment contains 27 pages and all pages are duly signed by me.
Sugandha Aggarwal ADJ/West/Delhi 10.04.2019 Announced in the open court on 10th April, 2019 CS No. 608639/16 Hem Chand Jain vs Bimla Devi etc Page 27 of 27