MAHENDRA BHUSHAN, J.—This is a vendees appeal in a per-emption suit against the judgment and decree of the learned Additional District Judge No. 2, Jaipur City, Jaipur dated February 20, 1976.

2. A house almashhoor Ghiyawalan-ki-haveli is situated in Chowkari Ghat Darbajd, Rasta Kothi Regran in the city of Jaipur. Venders Badri Narain and Smt. Gyarsi Devi and Nand Kishore, plaintiff were co-sharers of the said haveli and Nail. Chowk and Pol were in common enjoyment of the above referred two co-sharers and other co-sharers. Badri Narain and Smt. Gyarsi Devi were arrayed defendants No. 1 and 2 in the suit and shall be hereinafter described as the vendors, they sold out their respective portion of the house for an amount of Rs. 19857/- to the appellants who were arrayed as defendants No. 3 to 5 in the suit, under a registered sale-deed dated July 24, 1972 without any prior offer by way of notice under section 8 of the Rajasthan Pre-emption Act, 1967 (hereinafter referred to as the Act) and even without otherwise offering the property to the plaintiff pre-emptor, Nand Kishore. The per-emptor filed a suit for pre-emption inter alia on the ground under Section 6 (1) (i) and (ii) of the Act i.e. he was a co-sharer in the property transferred and the staircase, Chowk and Pol were such amenities which were common to his property and the property transferred The suit was contested by the vendees as well as vendors who raised common pleas, denying any accrual of right of pre-emption to the pre-emptor over the portion of the house sold by the vendors to the vendees. They also came with a plea that the portions in dispute were really sold for a price of Rs. 19897/- and not for Rs. 17897/- as alleged by the pre-emptor and that the property was offered to the pre-emptor for Rs. 19897/- but the pre-emptor could not manage for the sale amount of the property and as such by his conduct has waived his right to pre-empt the property. On the pleadings of the parties the learned trial Court framed the following issues :

1. Whether the plaintiff is a co-sharer with defendants No. 1 and 2 in the property in dispute?

2. Whether the Chowk, Pol arid Nall facing West are joint between the plaintiff and defendants No. 1 and 2 and the plaintiff has a right of preemption on the disputed property?

3. Whether the property was actually sold for Rs. 17897/- and the plaintiff is entitled to pre-empt the property for that amount?

4. Whether the plaintiff had refused to purchase the property, therefore, he is now estopped to file this suit?

5. Whether the suit has not been filed within limitation as the requisite Court fee was paid on 29.8 1973?

6. Relief?

3. After trial the suit of the pre-emptor for pre-emption of the property in dispute was decreed and it was ordered that on payment of the amount of Rs. 19897/- within a period of three months the pre-emptor will be substituted in the sale deed in place of vendees who shall hand-over the possession of the property to the pre-emptors.

4. Mr. Suroliya, learned Advocate for the appellant, has not challenged that the pre-emptor is a co-sharer in the prop3rty transferred and that the Staircase, Chowk and Pol are such amenities which are common to the property of the pre emptor and the property transferred and as such a right of preemption accrues to the pre-emptor. But he has raised a two fold submission, namely, that in the property transferred by the vendors to the vendees there is also a shop and the right of pre-emption does not accrue upon the transfer of a shop by virtue of section 5 (1) (a) of the Act and that a right of pre-emption is a very week right and the vendees can defeat this right by all legal means available to them. Because a right of pre-emption does not accrue relating to a shop and under the same sale-deed the vendees purchased the shop as well as the other portion of the house, he became a co-sharer of the same class as the pre-emptor and, therefore, the suit for pre-emption cannot be decreed. Mr. Mathu

Click Here to Read the rest of this document