The judgment establishes the importance of establishing a prima facie case for pre-emption and easementary rights, as well as the interpretation of relevant legal provisions in determining property rights.

A.C. Goyal, J.-The fact in brief giving rise to this civil miscellaneous appeal are that the plaintiff-appellants and proforma respondents No. 7 to ii filed a suit for pre-emption and permanent injunction with an application making a prayer for temporary injunction, with the averments that late Raja Laxman Singhji sold Plot No. C-i on 8.3.1957 to one Kamal Singh and sold Plot No. C-2 on 12.1957 to one Smt. Prem Kumari. Smt. Prem Kumari sold this plot on 15.1962 to Kallimullah. Thereafter, the plaintiffs purchased this plot vide registered sale deed dated 17.2000 from the legal heirs of Kallimullah. The defendant-respondent Nos. 1 to 5 sold the plot No. C-i to the defendant-respondent No. 6 Vide two registered sale deeds dated 17.2002 and 18.7.2002.

2. The plaintiffs have there windows, Roshandan and Nalas towards Plot No. C-i and there is a common way of both Plot No. C-i and No. C-2. Plot No. C-i was lying vacant. The legal representatives of late Kallimullah were enjoying easementary rights for last forty years over Plot No. C-i and the facilities of both the plots were common. Hence, the plaintiffs got the right of pre-emption under Section 6 of the Rajasthan Pre-emption Act, 1966 (in short ‘the Act of 1966’). The defendants did not give any prior notice to the plaintiff with regard to sale of Plot No. C-i. Now, the defendant No. 6 is bent upon raising construction on this plot without any right as the plaintiffs have got their right of pre-emption as well as easementary rights. It was, therefore, prayed that the defendants may be restrained from alienating this property in question and not to raise any construction, whatsoever, upon Plot No. C-i.

3. Defendant No. 6 submitted written statement and denied the averments with regard to pre-emption and easementary rights. It was pleaded that there is no common way and the plaintiffs raised some constructions over Plot No. C-2 after 17.2000. The remaining defendants also submitted their written statement.

4. Learned Additional District Judge No. 9, Jaipur City, Jaipur, having heard learned counsel for the parties, came to the conclusion that no prime facie case with regard to the easement as well as pre-emption is made out in favour of the plaintiff , hence, the application under Order 39 Rules 1 and 2 CPC was dismissed. Hence, this appeal.

5. Learned counsel for the plaintiff - appellants submitted that the learned Trial Judge while deciding application under Order 39 Rules 1 and 2 CPC made such observations as if the suit itself was being decided, which was not permissible. Reliance is placed upon Tejkaran vs. Sushil Kumar (1), wherein it was held that the courts are required to keep in view that where some right is claimed, the parties should not be allowed to diminish existence of such rights till final decision of the dispute. In the instant case, the learned Trial Judge in no way has decided the suit finally i.e. in other words, rights of the parties have not been finally decided but it was necessary for the trial court while considering the application for temporary injunction as to whether a prima facie case is made out or not, to grant the relief prayed for and for that purpose, appreciation of material on record was essential as in absence of that, it could not be possible for the trial court to arrive at the conclusion as to whether any prima facie case is made out or not.

6. Learned counsel for the plaintiff-appellants next submitted that objections with regard to the report of the local Commissioner were not considered. This contention also is not acceptable. Learned Trial Judge has observed that the objections to the report of the local Commissioner were made in writing but it was not specified as to what wrong facts have been mentioned in the report of the local Commissioner. According to the learned counsel for the plaintiff-appellants, the local Commissioner appointed by the court inspected the site and prepared the report but he instead of submitting th