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2008 Supreme(Raj) 976
JAIPUR BENCH
JITENDRA RAY GOYAL, J.
Ram Prakash Agarwal through L.Rs. – Appellant
Versus
Smt. Pushpa Agrawal & Ors. - Respondent
C.F.A. Nos. 135 of 1999 and 440 of 1998
Decided On:- 8-9-2008
J.P. Goyal, R.K. Agrawal, for Appellants:
B.L. Agrawal. Amit Gupta, for Respondents.
The main legal point established in the judgment is that the right of pre-emption does not accrue upon the transfer of a commercial establishment, as per Section 5(1)(a) of the Rajasthan Pre-Emption Act, 1966.
Headnote:
Pre-emption - Common Property - Rajasthan Pre-Emption Act, 1966 - Section 5(1)(a)
Fact of the Case:
The appeals involved a common question of pre-emption in regard to a property. Two separate suits were filed for pre-emption against the vendee and vendor of the disputed property. The trial court dismissed both suits on the ground that the disputed property was a commercial establishment, thus pre-emption did not accrue under Section 5 of the Rajasthan Pre-Emption Act, 1966.
Finding of the Court:
The court found that the disputed property was being used as a jewellery shop and commercial establishment, as evidenced by rent notes, receipts, and correspondence. The court held that the plaintiffs could not claim the right of pre-emption under Section 5(1)(a) of the Act.
Issues: The main issue was whether the disputed property was a commercial establishment or a residential one, determining the applicability of the right of pre-emption.
Ratio Decidendi: The court's decision was based on the proper appreciation of evidence, including statements from witnesses and documentary evidence, which proved that the disputed property was being used as a jewellery shop and commercial establishment.
Final Decision: Both appeals were dismissed with no order as to costs.
Since these two appeals being inter-related and involve one and the same core question of pre-emption in regard to the common property, hence both the appeals are taken up together for hearing and decision vide this common judgment.
2. To avoid the repetition and have clear glance over the matter, the facts of both the cases are narrated as under:-
3. S.B. Civil First Appeal No. 440/98 (Civil Suit No. 18/84 (298/95);- The plaintiff-appellant Smt. Pukhraj Devi filed a suit of right to pre-emption and permanent injunction against defendant-respondent No.1 Smt. Pushpa Agrawal (vendee) and defendant-respondent No.2 Gopi Chand stating therein that she and defendant-respondent No.2 Gopi Chand (vendor) are the co-sharers of house No. 4310, situated at Rasta Kundigaron Bherunji. Ghatgate. Jaipur and they were in possession of their respective shares in the said house but defendant-respondent No. 2 Gopi Chand (vendor) sold out his share (description of which was given in Para 3 of the plaint) to defendant-respondent No. 1 Smt. Pushpa Agrawal on 5-41983 by registered sale deed without giving her any legal notice whereas the plaintiff appellant was having first right to purchase and thus she has been deprived from purchasing the said disputed property.
3.1 The defendant-respondent No.1 Smt. Pushpa Agrawal (vendee) while denying the averments made in the plaint stated in her written statement that the plaintiff-appellant is not the co-sharer of the disputed property and the description of the disputed property has wrongly been shown in the plaint. It was also stated that the plaintiff appellant Smt. Pukhraj Devi does not have a right to pre-emption, otherwise also she was firstly offered to purchase the said property for consideration of Rs. 45,000/- and on her denial the said property in dispute was sold to her (vendee], therefore, the plaintiff-appellant Pukraj Devi was not required to be given the legal notice. It was further stated that after purchase of the disputed property the defendant-respondent No. 1 has spent a sum of Rs. 10,000/- in the repairs of the said property. It was then pleaded that the disputed property is commercial establishment in which jewellery business and manufacturing of stones is being done and therefore the plaintiff appellant has no right to pre-emption.
4. S.B. Civil First Appeal No. 135/99 (Civil Suit No. 297/95):- The plaintiff-appellant Ram Prakash filed a suit for preemption against defendant-respondent Nos.1 and 2 Smt. Pushpa Agrawal and Gopi Chand respectively vendor and vendee of the disputed property, description of which was given in Paras 3 & 4 of the plaint. According to the plaint, the plaintiff-appellant and the defendant-respondent No.2 Gopi Chand (vendor) (since deceased) are the co-sharers of the disputed property-house No. 4310 situated at Rasta Kundigaron Bherunji, Ghatgate. Jaipur and they are in possession of their respective shares. The defendant respondent No.2 Gopi Chand (vendor) sold his share in the disputed house, as mentioned in Paras 3 & 4 of the plaint, to respondent No. 1 Smt. Pushpa Agrawal on 54-1983 and the plaintiff-appellant came to know about this first time on 12-4-1984. Since the plaintiff-appellant Ram Prakash was the co-sharer of the disputed property. Therefore, he is having a right to pre-emption. It was also stated that before sale of the disputed property the plaintiff-appellant Ram Prakash was neither given any notice under Section 8 of the Right of Pre-Emption Act. 1966 nor was he offered to purchase the same. Therefore, a prayer was made for a decree of pre-emption in his favour. During the pendency of the suit, on the application filed under Order 1, Rule 10 of the Code of Civil Procedure (hereinafter to be referred as the Code), defendant-respondent No. 3 Smt. Pukhraj Devi was made as a party. It is also significant to mention here that respondent No.2 Gopi Chand (vendor) died during the pendency of the suit.
4.1 The plaintiff-appellant Ram Prakash and res
