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2003 Supreme(Raj) 782
Rajasthan High Court, Jaipur Bench
Honble A.C. GOYAL, J.
Ashok Kumar & Others - Appellant
Versus
Sawai Singh & Others - Respondents
S.B. Civil Misc. Appeal No. 2041 of 2003
Decided On : September 11, 2003
Anoop Dhand, for Appellant K.S. Sharma, for Respondents
Headnote:Pre-emption Act, 1966, Sec. 6, Easement Act, 1882, Sec. 4; C.P.C. Order 39 Rule 1 and 2 – Right of pre-emption and easementary rights – Held – The right of pre-emption would accrue to the owner of other immovable property with a stair case of an entrance or other right or amenity common to such other property and the property transferred – No prima facie case is made out in favour of appellant. (Paras 11 to 15)
The right of pre-emption would accrue to the owners of other immovable property with a stair case or an entrance or other right or amenity common to such other property and the property transferred. (Para 11)
Based on the provided legal document, the key points are as follows:
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The case involves a dispute over the right of pre-emption and easementary rights concerning certain immovable properties, specifically Plot No. C-1 and C-2, in a residential colony. The plaintiffs claim they have pre-emption rights and easementary rights over these plots due to their long-standing enjoyment of common amenities and prior ownership rights (!) (!) .
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The plaintiffs allege that the previous owner, Raja Laxman Singhji, sold the plots in question and that they purchased the plot through legal heirs, maintaining their rights over the property, including a shared pathway and other common facilities (!) .
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The defendants deny the existence of any common pathway or easementary rights and contend that the plaintiffs' constructions after the purchase and the prior sale history of the plots negate the claim of rights over the property (!) .
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The trial court examined whether the plaintiffs established a prima facie case for pre-emption and easement rights. It concluded that no such prima facie case was made out, primarily because the plaintiffs did not sufficiently prove the existence of a common pathway or other rights that would give rise to pre-emption or easement (!) (!) (!) .
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The court also noted that certain claims, such as the right of pre-emption under specific sections of the relevant Acts, had been declared unconstitutional, further weakening the plaintiffs' case (!) .
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Regarding easementary rights, the court observed that the plaintiffs' actions after purchasing the plot, such as constructing boundary walls and opening windows, did not establish a right of easement. The court emphasized that no prima facie case of easement was made out (!) (!) .
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The court dismissed the appeal, holding that the plaintiffs failed to demonstrate a prima facie case for either pre-emption or easement rights. The findings of the trial court were upheld, and the appeal was considered devoid of merit (!) .
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Throughout the proceedings, the court clarified that its observations were not final judgments on the merits of the case but were limited to the prima facie assessment necessary for granting or denying temporary injunctions (!) (!) .
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The court also addressed procedural concerns, such as objections to the local commissioner's report, and found that these did not materially affect the prima facie evaluation of the case (!) .
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Overall, the decision emphasizes that the existence of rights such as pre-emption and easements requires clear and prima facie evidence of shared amenities or long-standing enjoyment, which the plaintiffs failed to sufficiently establish in this case.
(2). The plaintiffs have there windows, Roshandan and Nalas towards Plot No. C-1 and there is a common way of both Plot No. C-1 and No. C-2. Plot No. C-1 was lying vacant. The legal representatives of late Kallimullah were enjoying easementary rights for last forty years over Plot No.C-1 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-1. 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-1.
(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 12.7.2000. 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 submitt
