JUDGMENT :

1. This first appeal under Section 96 CPC has been filed by plaintiff (now deceased and represented through his legal heirs) against the judgment and decree dated 24.11.1981 passed by the Additional District Judge, Jaipur City, Jaipur in Civil Suit No.192/1980, whereby and whereunder the civil suit for specific performance and declaration, filed by plaintiff has been decided in a manner that an alternative prayer of the plaintiff to declare sale deed of defendant No.1 dated 5.4.1980 as null and void, has been granted to the extent of bukhari but the principle prayer of specific performance seeking directions against defendants No.1 & 2 to sell the two shops in question to the plaintiff on the basis of an agreement dated 5.7.1969, has been declined and plaintiff’s suit for specific performance has been dismissed.

Plaintiff has assailed the judgment and decree dated 24.11.1981, to the extent of dismissing his suit for specific performance and defendant No.1 has submitted cross-objections under Order 41 Rule 22 CPC, challenging the part of decree passed in favour of plaintiff, declaring the sale deed of defendant No.1 as null and void in relation to the bukhari situated on the top of one of the shop in question.

2. The facts of case, leading to the present first appeal and cross-objections, in a nutshell, are as under:-

2.1 Plaintiff instituted present civil suit jointly against defendants No.1 & 2 on 1.5.1980, seeking a decree for specific performance on the basis of an agreement dated 5.7.1969 and for seeking a direction against the defendants to sell and deliver the possession of both the two shops in questions to plaintiff.

2.2 The agreement dated 5.7.1969 is a hand written document and the suit is solely based on condition incorporated in clause 11, of that agreement.

2.3 Plaintiff’s case is that defendant No.2 being owner of the haveli and four shops situated at Chowkdi Modikhana, Chaura Rasta, Swai Mansingh Highway, Jaipur entered into an agreement dated 5.7.1969, to sell her haveli except the four shops. Plaintiff himself does not dispute that in pursuance to that agreement, the sale deed dated 6.8.1969 has been executed in his favour for the portion of haveli excluding four shops situated in the ground floor of haveli itself.

2.4 Plaintiff has pointed out that in clause 11 of agreement dated 5.7.1969, a condition was incorporated in relation to two shops in question to the effect that “whenever defendant No.2 would sell both shops, she will first offer to sell both the shops to the plaintiff on the same cost, which would be offered by another person, because in these shops, stop switch, water meter, nala ¼ukyk½ and electric fittings are fixed so plaintiff would face difficulty if shops are sold to others. If the shops are sold to other persons, then plaintiff would have right to initiate legal actions.” In hindi the exact words of the aforesaid condition is in following terms:-

^^ijUrq tc dHkh ;g nksuksa nqdkus vkidks mlh dher ij cspwaxh tks dher nwljk O;fDr nsrk gksxkA D;awfd bu nqdkuksa esa vkidk ikuh dk LVkWi o ehVj] ukyk o fctyh fQfVax gks jgk gS ftlls nwljs dks csPkus --vkidks ijs’kkuh gksxhA ;fn vU; o;fDr dks csPkawxh rks vkidks d+kuwuh dk;Zokgh dk gd gksxkA^^

2.5 It was stated in the plaint that thereafter defendant No.2 has sold both the shops in question to defendant No.1 vide sale deed dated 5.4.1980, against a sum of Rs.47,000/-, without giving the offer to plaintiff whereas plaintiff was/is ready to purchase both shops on the same price, as paid by defendant No.1, hence defendant No.1 has committed breach of the condition No.11 of the agreement dated 5.7.1969.

2.6 Plaintiff further pleaded that by virtue of condition incorporated in clause 11 of the agreement dated 5.7.1969, the plaintiff has securing his preferential right to purchase both the shops in question and thus plaintiff had acquired a right of preemption. It was pleaded that since in the shops in question, water stop switch & meter, elect