The right of pre-emption must be claimed against all parties involved in a sale; failure to do so results in dismissal of the suit.

ORDER :

Mr. Vinit Kumar Mathur, J. - Heard learned counsel for the parties.

2. The present first appeal has been filed against the judgment and decree dated 20.05.1989 passed by the Additional District Judge No.2, Udaipur (hereinafter referred to as 'the trial Court'), whereby the suit preferred by the petitioner was rejected.

3. Briefly noted the facts in the present case are that appellant- Kaloo Ram filed a suit for right of pre-emption against the respondents stating therein that respondent No.2- Narayan Lal had sold a part of house/haveli to the first appellant- Kaloo Ram through a registered sale deed dated 03.11.1978. Subsequently, another portion of the Haveli was also sold by the respondent No.2- Narayan Lal to the respondent No.1- Radha Kishan on 04.10.1979. The respondent No.1- Radha Kishan further sold some portion of the Haveli to the respondent Nos.3 and 4- Abdul Gani and Smt. Femida on 21.07.1980. It was pleaded in the suit that there existed a common passage between the properties of the first appellant i.e. Kaloo Ram and the respondent No.2- Narayan Lal, which is being used by the first appellant and the respondent No.2. It was further pleaded that the property, which was sold by the respondent No.2 is being used by the appellant for going to his premises. As there was a common entrance for both the properties, it was asserted that the first appellant-Kaloo Ram had the right of pre-emption over the property which was sold by the respondent No.2- Narayan Lal to respondent No.1- Radha Kishan.

4. The trial Court on the pleadings placed before it, framed eight issues which reads as under:-

^^1- D;k fooknxzLr edku o oknh ds edku ds chp dh nhokj 'kkeykrh gS o fofØr edku ds iwoZ esa fLFkr islst esa oknh dk QSjko oknh ds pkSd esa tkus gsrq gS bl izdkj oknh, oa foØhr edku gsrq lfEefyr jkLrk gS vr% oknh dks vxzØ;kf/kdkj gS \

2- D;k izfroknh Øe 2 us oknh dks mDr foØ; ds iwoZ jktLFkku fiz,E'ku ,DV dh /kkjk 8 ds vuqlkj izfroknh Øe 1 ds i{k esa foØ; fd;s tkus ls iwoZ lwpuki= ugha fn;k o bldk okn ij D;k vlj gS \

3- D;k okn dk ewY;kadu mfpr ugha fd;k x;k gS \

4- D;k izfroknh Øe 2 ds fooknxzLr lEifRr foØ; djus dk bjknk gksus dh tkudkjh oknh us izfroknh Øe 1 dks nh Fkh o bldk okn ij D;k vlj gS \

5- D;k okn es okndkj.k ,oa i{kdkjksa ds nqfHkZ"k.k dk nks"k gS \

6- D;k izfroknh Øe 3 ,oa 4 ds fo:) dksbZ okn dkj.k okn esa vafdr ugha fd;k x;k gS o bldk okn ij D;k vlj gS \

7- D;k izfroknh Øe 3 fo'ks"k gtkZ ikus dk vf/kdkjh gS \

8- vuqrks"k \^^

5. Out of the eight issues, issue Nos.1 to 5 were decided in favour of the first appellant- Kaloo Ram, however, the finding on issue No.6 was recorded against him and therefore, the suit was dismissed. Hence, the present first appeal has been filed.

6. Learned counsel for the first appellant vehemently submits that the learned trial Court had decided the issue No.6 against the first appellant only on the ground that no relief was claimed against the respondent Nos.3 and 4, who were the subsequent purchasers and the learned trial Court had not given the first appellant an opportunity to pay the amount of sale consideration, which was paid by the respondent Nos.3 and 4 to the respondent No.1. He further submits that had there been any opportunity granted to the first appellant of making any payment to the respondent Nos.3 and 4 for the sale consideration paid by them to respondent No.1, he would have very well paid the same and obtained the decree of pre-emption in his favour.

7. Learned counsel also submits that since the first appellant was aggrieved by the sale which was made by the respondent No.2 to respondent No.1, thus, there was no occasion for him to challenge the subsequent sale made by respondent No.1 to respondent Nos.3 and 4. He further submits that since the right of pre-emption was only against the respondent No.2 (owner of the property), therefore, the challenge was made only to the first sale i.e. the sale made by the respondent No.2 to respondent No.1. Thus, he submits that the finding record