1986 Supreme(Raj) 712

RAJASTHAN HIGH COURT
Kishore Singh Lodha, J.
Jugal Kishore - Appellant
Versus
Shanti Mal And Ors. - Respondent
S.B. Civil MIsc. Appeal No. 170 of 1984(Against judgment dated 19.11.1984 passed by Shri S.L. Jain, Additional District Judge No. 2, Jodhpur).
Decided On : 22-09-1986

In a suit for pre-emption, the plaintiff has a prima facie case in his favour for grant of temporary injunction and the question of balance of convenience and irreparable injury are also in his favour.

Headnote:

PRE-EMPTION - RIGHT TO FOLLOW PROPERTY - TEMPORARY INJUNCTION - RIGHT OF PRE-EMPTION IS A RIGHT TO FOLLOW THE PROPERTY WHICH HAS BEEN SOLD TO SOME BODY ELSE BUT WHICH THE PLAINTIFF HAS RIGHT TO PURCHASE IN PREFERENCE TO THE PERSON TO WHOM IT HAS BEEN SOLD - IN A SUIT FOR PRE-EMPTION, THE PLAINTIFF HAS A PRIMA FACIE CASE IN HIS FAVOUR FOR GRANT OF TEMPORARY INJUNCTION AND THE QUESTION OF BALANCE OF CONVENIENCE AND IRREPARABLE INJURY ARE ALSO IN HIS FAVOUR.

Fact of the Case:

Plaintiff filed a suit for pre-emption in respect of the properties sold by defendant No. 1 Dr. Kan Mal on the ground that plaintiff Shantimal, Dr. Kantimal and Suraj Mal are sons of Gumanmal. Gumanmal had acquired the property described in para 1 of the plaint by foreclosure and also raised certain more construction after acquiring the property. The whole building, thus constructed is known as Bhansali Building. It is further alleged that Guman Mal gifted the suit property to his three sons in separate definite shares by registered gift-deed dated August 26, 1958. The pol of the property was kept joint and the passage through the pol was also joint. The three brothers took possession of their respective shares. The case of the plaintiff further was that defendant No. 1 Kanmal disposed of his share of the property to defendants No. 2 to 13 by different sale-deeds, which were got registered on September 1, 1982 without any notice to the plaintiff and keeping perfect secrecy about the negotiation of the same. The plaintiff further claimed that the sale-price has been exaggerated in the sale-deed although the real consideration received by defendant No. 1 was much less. The plaintiff further alleged that as the property sold by defendant No. 1 to defendant No. 2 to II and the property which is in possession of the plaintiff are parts of the same property, under Section 8 of the Rajasthan Pre-emptor Act, it was incumbent upon defendant No. 1 to have given a notice to the plaintiff offering him to sell the property in dispute, but this was not done nor the other defendants ever gave such notice to the plaintiff before they purchased the property. The plaintiff claimed the right of pie-emptor on the ground that he was a co-sharer in the property and also because the Pol and the passage through Pol was common between the three parts of the same building, which had been gifted by Shri Guman Mal to his three sons. He also alleged that he being the real brother of the seller, he is pre-emptor of the first class. He also claimed pre-emption on some other grounds, with which I am not very much concerned at present. He, thus, claimed the right of preemption on the properties sold by defendant No. 1 in favour of defendants Nos. 2 to 11.

Finding of the Court:

The court found that the plaintiff had a prima facie case for grant of a decree for pre-emption and that the balance of convenience and irreparable injury were also in his favour. The court also found that the discretion exercised by the lower court in granting temporary injunction in favour of the plaintiff was not improper.

Issues: 1. Whether the plaintiff has a prima facie case for grant of a decree for pre-emption? 2. Whether the balance of convenience and irreparable injury are in favour of the plaintiff? 3. Whether the discretion exercised by the lower court in granting temporary injunction in favour of the plaintiff was improper?

Ratio Decidendi: 1. The right of pre-emption is a right to follow the property which has been sold to some body else but which the plaintiff has right to purchase in preference to the person to whom it has been sold. 2. In a suit for pre-emption, the plaintiff has a prima facie case in his favour for grant of temporary injunction and the question of balance of convenience and irreparable injury are also in his favour. 3. The discretion exercised by the lower court in granting temporary injunction in favour of the plaintiff was not improper.

Final Decision: The appeal was dismissed.