Rajasthan High Court - Jaipur
Mahesh Chand vs Gopi Ballabh & Ors on 21 February, 2013
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR SB CIVIL FIRST APPEAL NO.184/90. MAHESH CHAND APPELLANT. VS GOPI BALLABH & ORS. RESPONDENTS. DATE OF JUDGMENT : 21ST FEBRUARY, 2013. PRESENT HON'BLE MS. JUSTICE BELA M. TRIVEDI Mr. N.K. Joshi, Sr. Advocate with Mr. Sanjay for the appellant. Mr. S.M. Mehta, Sr. Advocate with Mr. Anil Mehta, Mr. Harsh Sharma and Ms. Pallavi Mehta for the respondents. JUDGMENT BY THE COURT :
1. The appellant-original defendant No.1 has filed the present appeal under Section 96 of CPC challenging the judgment and decree dated 10.10.90 passed by the District Judge, Tonk (hereinafter referred to as 'the trial court') in Civil Suit No. 18/79, whereby the trial court has decreed the suit of the respondent Nos. 1 and 2-plaintiffs seeking right of pre-emption over the suit property purchased by the appellant.
2. As per the case of the respondent Nos. 1 and 2-plaintiffs, they had one property situated at Mohalla Joshiyan, Purani Tonk, and in the same Guwadi (enclosed compound) there was a house belonging to one Damodar Lal and his son Shyam Lal as shown in the map annexed to the plaint. According to the plaintiffs, the said Damodar Lal and his sons Shyam Lal and Ram Lal sold out their property shown in the map as 'abcdef' to the defendant No.1 i.e. the appellant by executing the registered sale-deed on 15.12.78. It was the further case of the respondent No.1 and 2-plaintiffs that the plaintiffs had right of pre-emption over the property purchased by the appellant-defendant No.1, as there was a common pole (big gate) common chowk and common way being used by the plaintiffs and the other owners of the properties situated in the said Guwadi, including of the property purchased by the defendant No.1. The respondent Nos. 1 and 2-plaintiffs, therefore, had filed the suit for the enforcement of their right of pre-emption under the provisions contained in the Rajasthan Pre-emption Act, 1966 (hereinafter referred to as 'the said Act') and for seeking possession of the property purchased by the appellant-defendant No.1 vide the sale-deed dated 15.12.78.
3. The said suit was resisted by the appellant-defendant No.1 by filing his written statement denying the allegations and averments made in the plaint and further submitted that the map annexed to the plaint did not show the correct position of the properties belonging to the plaintiffs and of the defendant No.1 and that though the original owner Damodar Lal had asked the plaintiffs to purchase the house in question, the plaintiffs refused to purchase the same and thereafter the said Damodar Lal had sold it out to the appellant. The appellant had further amended the written statement by contending interalia that on the northern side of the house in question, there was an ancestral house of the appellant and his father, and they were also using the common way and common chowk of the said Guwadi and, therefore, the plaintiffs could not claim their exclusive right of pre-emption over the property purchased by the defendant No.1.
4. The trial court after framing the necessary issues and appreciating the evidence on record adduced by both the parties, decreed the suit of the plaintiffs by the impugned judgment and decree dated 10.10.90. Being aggrieved by the said decree the present appeal has been filed.
5. The learned senior counsel Mr. N.K. Joshi for the appellant-defendant No.1 taking the court to the evidence adduced by both the parties submitted that the trial court had mis-appreciated the evidence on record. Relying on the maps produced at Ex. A-105 and Ex.100, he submitted that there was one property belonging to Nathu Lal Joshi in between the properties of the plaintiffs and the defendant No.1, however the said Nathu Lal was not made party-defendant in the suit. He further submitted that as per the map Ex.A-105, apart from the common way shown as Galary 'x' and 'y', there was also another way on the northern side, used by the plaintiffs for going out of the Guwadi and, therefore, it could not be said that the common way shown as 'x' and 'y' was exclusively used by the plaintiffs and the predecessor in title of the defendant No.1. Mr. Joshi further relying on the provisions contained in Section 6 of the said Act submitted that for claiming the right of pre-emption, the same immovable property consisting in two parts should have common entrance and common amenities, whereas in the instant case the properties of the plaintiffs and the property purchased by the defendant No.1 were separate properties. There were also other properties situated in the same Guwadi owned by other persons and hence the plaintiffs were not entitled to claim the right of pre-emption over the property purchased by the defendant No.1. In the alternative learned counsel Mr. Joshi submitted that the father of the appellant-defendant No.1 Girdhari Lal also had the property on the northern side in the said Guwadi as shown in the map Ex. A-105 which was an ancestral property and, therefore, he also was the co-owner falling under the classes of persons mentioned in Section 6 of the said Act. According to him therefore, the right of pre-emption would not accrue to the respondent Nos. 1 and 2-plaintiffs on the transfer to the person mentioned in Section 6, as contemplated in Section 5(1)(c) of the said Act. In support of his submissions Mr. Joshi has relied upon the judgments of this court in case of Akbar Ali & Anr. Vs. Ambalal & Ors. AIR 1983 Raj. 263, Nen Mal Vs. Kan Mal 1987 RLW 658 and Dharam Pal Vs. Smt. Kaushalya Devi 1989(2) RLR 826.
6. The learned senior counsel Mr. S.M. Mehta for the respondent Nos. 1 and 2-plaintiffs per contra submitted that the plaintiffs being the owners of the immovable property having common entrance and common amenities like chowk and gate to the property transferred in favour of the appellant-defendant No.1, the plaintiffs had right of pre-emption over the said property transferred to the appellant in view of Section 6(1)(ii) of the said Act. Placing reliance on the decision of the Apex Court in case of Bhau Ram Vs. Baij Nath Singh AIR 1962 SC 1476, Mr. Mehta submitted that when the sale is of a property having a common entrance from the street with other properties, the owners of such other properties would stand more or less in the position of co-sharers, though actually there may be no cosharership in the property sold, and thus the case of the plaintiffs would also fall in the category of persons mentioned in Section 6(1)(i) of the said Act. Mr. Mehta further submitted that the appellant-defendant No.1 being not the person falling under the classes of persons as mentioned in Section 6(1) or Section 6(2) of the said Act, the provisions contained in Section 5(1)(c) would not be applicable to the facts of the present case.
7. Having regard to the submissions made by the learned counsels for the parties and to the evidence on record, as also the judgment and decree passed by the trial court it appears that there are certain undisputed facts. It is not disputed by the parties that the property of the respondent Nos. 1 and 2-plaintiffs and the property purchased by the appellant-defendant No.1 were situated in the same Guwadi as shown in the map Ex. A-105. It is also not disputed that the appellant had purchased the said property from one Damodar Lal and his sons Shyam Lal and Ram Lal, who were the defendant Nos. 2 and 3 in the suit, by executing the sale-deed Ex.1 dated 15.12.78. It is also not disputed that on the northern side of the property purchased by the appellant, there was a property belonging to his father Girdhari Lal. In short, parties have not disputed the position of the properties as shown in the map Ex.A-105 rather both the learned counsels for the parties have relied upon the said map Ex.A-105. As transpiring from the said map, there was a common gate described as Galary-'x' to 'y' on the eastern side. It further appears that there was also a common chowk and common way going through the properties shown in the map Ex.A-105.
8. It further appears that there was a property belonging to one Nathu Lal in between the properties of the respondent Nos. 1 and 2 and the property purchased by the appellant and hence the learned counsel Mr. Joshi for the appellant had sought to submit that the said Nathu Lal was a necessary party to the suit. In this regard it may be stated that though there was an issue framed by the trial court as to whether the said Nathu Lal had any share in the disputed property or not, it appears that during the course of arguments before the trial court, the learned counsels for the parties had conceded that the issue did not have any impact on the merits of the case and therefore the said issue remained undecided. Under the circumstances, the court does not find any merit in the submission made by the learned counsel Mr. Joshi for the appellant that the suit was bad for non-jointer of Mr. Nathu Lal. The said Nathu Lal being neither necessary nor proper party and such a contention having not been raised by the defendants in the suit, the said submission of Mr. Joshi does not deserve any consideration now in the instant appeal.
9. As regards the other issues, the bone of contention raised by Mr. Joshi is that the respondent No.1 and 2-plaintiffs did not fall within the classes of persons mentioned in Section 6(1) and, therefore, they were not entitled to the right of pre-emption over the property purchased by the appellant. In order to appreciate his contention, it would be beneficial to reproduce the relevant part of Section 6, which reads as under :-
Section 6.--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 staircase or an entrance or other right or amenity common to such other property and the property transferred.
10. From a bare reading of the said section it clearly transpires that the right of pre-emption in respect of any property transferred shall accrue to and vest in the co-sharers or partners in the property transferred, or the owners of other immovable property with a staircase or an entrance or other right or amenity common to such other property and the property transferred, as per sub-section (1) to Section 6. The respondent Nos. 1 and 2-plaintiffs had claimed their right of pre-emption on the basis of they being the owners of the property which had common entrance and common amenities to the property purchased by the appellant-defendant No.1. From the oral as well as the documentary evidence, more particularly the maps at Ex. A-105 and Ex.100, it transpires that the plaintiffs had duly established that they were the owners of the property situated on the western side of the property purchased by the appellant and both the properties were situated in the same Guwadi having common chowk and common way. It was also established by the plaintiffs that the plaintiffs and Shri Damodar Lal and his sons i.e. the predecessor in title of the appellant were using the common gate shown as Galary 'x' and 'y' on the eastern side of the map Ex. A-105 and that they were also using the common way and common chowk situated in between the said two properties. The learned counsel Mr. Joshi for the appellant has failed to point out as to how the findings recorded by the trial court with regard to the ownership of the plaintiffs and the existence of common gate, common way and common chowk with regard to their property were illegal or perverse. The court therefore is of the opinion that the respondent Nos. 1 and 2-plaintiffs having established their right of pre-emption over the property purchased by the appellant, under Section 6(1)(ii) of the said Act, the plaintiffs had right to get their names transferred in respect of the said property purchased by the appellant-defendant No.1.
11. The learned senior counsel Mr. Mehta for the respondent No.1 had also relied upon the decision of the Apex Court in the case of Bhau Ram Vs. Baij Nath Singh & Ors.(supra) in which the Apex Court while interpreting the provisions of Section 16 of the Punjab Pre-emption Act, 1 of 1913 analogous to the provisions contained in Section 6 of the said Act and had observed in para 13 as under :-
Turning now to the fourth ground, where the sale is of a property having a common entrance from the street with other properties, in the owners of such properties", this ground is in our opinion similar to the third ground, the only difference being that in one case there is a common staircase while in the other case there is a common private passage from the street. The idea behind this ground seems to be that the buildings are in a common compound and perhaps were originally put up by members of one family or one group with a common private passage from the public street. In such a case the owners of the buildings would stand more or less in the position of co-sharers, though actually there may be no co-sharership in the house sold. But as we have said this case would approximate to cases of a common staircase and co-sharer; therefore, for reasons given in the case of co-sharers we uphold the right of preemption covered by the fourth ground in s. 16. The case falling under the fourth ground must be distinguished from katras which are exempt from the, provisions of the Act in s. 5: (see Karim Ahmad v. Rahmat Elahi) (1).
12. In view of the above observations of the Apex Court also it could be safely held that the respondent Nos. 1 and 2-plaintiffs who were using the common chowk, passage and other common amenities alongwith the other owners of the properties situated in the Guwadi, they could also be said to be the co-sharers of the property transferred to the appellant, and in that case also the respondent Nos. 1 and 2 would fall under the classes of persons as mentioned in clause (i) of Section 6(1).
13. The judgments of this court relied upon by Mr. Joshi have no application to the facts of this case, inasmuch as in case of Nen Mal Vs. Kan Mal (supra), the Division Bench, after considering the constitutional validity of Section 6(1)(iii) of the said Act, has struck down the said provision, whereas the present case falls under Section 6(1)(ii) of the said Act. In case of Dharam Pal Vs. Smt. Kaushalya Devi (supra) also the court while considering the right of preemption based on common wall or common boundary wall in between two bungalows observed that mere existence of a common boundary wall between two bungalows does not make plaintiff a co-sharer in the property sold or a person with a common staircase or common entrance or any other common right or amenity, and that substantially he is only a neighbour. However, in the instant case, it was established that the plaintiffs were using the common gate, chowk, passage and other amenities alongwith the other owners of the properties situated in the same Guwadi.
14. It was submitted in the alternative, by the learned counsel Mr. Joshi that the appellant-defendant No.1 was also the co-owner of the property belonging to his father and, therefore, appellant would also fall under the same class as the respondent Nos. 1 and 2-plaintiffs as contemplated in Section 6(1)(ii) of the said Act and, therefore, the respondent No.1 and 2-plaintiffs were not entitled to enforce right of pre-emption, in view of embargo put under Section 5(1)(c). In this regard, it is required to be pointed out that the defendant No.1 and his father were examined as D.W.1 and D.W.2, respectively before the trial court, and his father Girdhari Lal had categorically admitted in his cross-examination that the property situated on the northern side of the property purchased by his son Mahesh, was purchased by him in the year 1957. There was nothing on record to suggest that the said property belonged to the Joint Hindu Family of Girdharilal and the appellant also had his right from his birth or that he was the co-parcener in the property owned by his father. The appellant himself had also admitted in his evidence that he was in the Government service and that he had separate Ration Card from that of his father. Thus in absence of any evidence to suggest that the appellant was also the co-owner of the property belonging to his father Girdhari Lal, the trial court has rightly held that the appellant-defendant No.1 could not be said to be the person entitled to the right of pre-emption as contemplated in Section 6(1)(ii) of the said Act, dis-entitling the respondent Nos. 1 and 2-plaintiffs from claiming right of pre-emption, in view of Section 5(1)(c) of the said Act.
15. In view of the above, the court does not find any illegality or infirmity in the impugned judgment and decree passed by the trial court and the same is hereby confirmed. The appeal being devoid of merits deserves to be dismissed and is accordingly dismissed.
(BELA M. TRIVEDI)J. MRG.
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
M.R. Gidwani PS-cum-JW