The main legal point established is that a suit for pre-emption can be maintainable without seeking partition and may not be barred by limitation if the plaintiff demonstrates ignorance of the sale deed.

VALMIKI J. MEHTA, J :

C.M. No.45105/2017 (under Order XXII Rule 3 CPC filed by the appellant)

1. By this application, the appellant informs that appellant has expired and it is prayed that the legal heirs of the appellant be brought on record. Accordingly, the legal heirs of the appellant are brought on record for the purpose of this appeal as also the suit inasmuch as in a suit such as the present, and as detailed hereinafter, right to sue will survive on the death of the appellant. Of course, these observations are made without prejudice to any right of the respondents/defendants who oppose the suit on any legal or factual issue in case the respondents/defendants are entitled to urge that in law the present appellants being the legal heirs of the original deceased appellant/plaintiff had no right to continue with the subject suit with respect to the relief of pre-emption.

2. Application is accordingly allowed and disposed of. Appellant/plaintiff will file the amended memo of parties before the trial court.

RFA No.716/2017 and C.M. No.28716/2017 (stay)

3. This Regular First Appeal under Section 96 of Code of Civil Procedure, 1908 (CPC) is filed by the plaintiff impugning the judgment of the Trial Court dated 11.7.2017 by which the trial court has dismissed the suit as not maintainable. Trial court held that the suit filed by the appellant/plaintiff for declaration, cancellation of the sale deed, permanent injunction and possession was not maintainable in the absence of seeking the relief of partition. The plaint was therefore rejected by the impugned judgment dated 11.7.2017. Plaint has been rejected at the stage of pleadings i.e no issues were framed, evidence was not led and suit was not decided at the stage of final arguments after trial.

4. The case of the appellant/plaintiff before the trial court was that the suit property bearing no.A-78, Malviya Nagar, New Delhi situated on a plot admeasuring 294 sq. yds. was owned by the father of the appellant/plaintiff and the respondent nos.1 and 2/defendant nos.1 and 2. Appellant/plaintiff and the respondent nos.1 and 2/defendant nos.1 and 2 are brothers. In the plaint it was pleaded that on the intestate death of the father, Capt. (Dr.) K.S. Thapar, appellant/plaintiff and respondent nos.1 and 2/defendant nos.1 and 2 became the co-owners of the suit property which devolved upon them by succession. Appellant/plaintiff pleads that there has never took place a partition between the appellant/plaintiff and respondent nos.1 and 2/defendant nos.1 and 2 but yet the respondent no.1/defendant no.1 wrongly sold the second floor of the suit property to the respondent no.3/defendant no.3 and which respondent no.3/defendant no.3 has sold the second floor thereafter to respondent no.4/defendant no.4. As per the plaint, the pleading is that it is only on 30.5.2007 that the appellant/plaintiff came to know of the transactions of the sale of the second floor of the suit property firstly to the respondent no.3/defendant no.3 in the year 2003 and thereafter to the respondent no.4/defendant no.4 in the year 2007. The appellant/plaintiff also pleaded a right of pre-emption and which right of pre-emption legally will arise because of Section 22 of the Hindu Succession Act, 1956 and which provides that in case a property of an ancestor devolves upon the legal heirs of the ancestor, then, one legal heir when he sells the same must first offer his share to the other legal heirs of the property.

5. Accordingly, in the suit the following reliefs are claimed:-

“(a) pass a declaratory decree in favour of the plaintiff and against the defendants that property bearing No.A-78, Malviya Nagar, New Delhi, comprising of ground floor/first floor/second floor (partly constructed) is joint property of plaintiff, defendant nos.1 and 2 and the same was never partitioned amongst themselves and there is no parti