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2009 Supreme(Raj) 271
[Citation : 2009(3) RLW 2441 (Raj.)]
(Rajasthan High Court)
Jaipur Bench
Prahlad Kumar Vs. Kishan Chand & Ors. (Jain, J.)
HON'BLE NARENDRA KUMAR JAIN, J.
Prahlad Kumar
Versus
Kishan Chand & Ors.
S.B. Civil First Appeal No. 156 of 1992, decided on 17.02.2009
G.K. Garg with Vijai Jangir, Counsel, for Appellant;
R.P. Garg, Counsel, for Respondent
Headnote:C.P.C., Sec. 96; Rajasthan Pre-Emption Act, 1966, Secs. 5, 6 and 8 — Regular first appeal — Suit for pre-emption — Decreed — Plaintiff and defendant No. 3 are real brothers — Diputed property is their ancestral residential house — Defendant No. 1 sold his share to third party (Defendent No. 2) — Parties were co-sharers — Held — Plaintiff and defendnat No. 3 are real brothers and they were residing together in their undivided property at the time of sale — Defendant No. 3 is one of the witnesses of sale deed, therefore, it is clear that defendant No. 3 had knowledge about sale of property — It can very well be presumed that plaintiff had also knowledge about said sale because he was witness of sale-deed and plaintiff were residing jointly — It is assumed that right of pre-emption accrued to them but they did not claim their right of pre-emption at the time of sale — Plaintiff failed to prove his right of pre-emption — Decree set aside. (Paras 33 & 34)
Appeal allowed.
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vihy Lohdkj dhA
Hon'ble JAIN, J.— Defendant No. 2-appellant Prahlad Kumar has preferred this Regular First Appeal under Section 96 of the Code of Civil Procedure challenging the impugned judgment and decree dated 9th July, 1992 passed by the Additional District Judge, Bayana, in Civil Suit No. 7/89 whereby the trial Court has decreed the suit for Pre-emption in respect of the disputed property filed by the plaintiff-respondent No. 1 Kishanchand.
2. Briefly stated the facts of the appeal are that on 1st March, 1989 the plaintiff filed a suit for Pre-emption in respect of disputed property against the defendants in the trial Court wherein it was pleaded that the plaintiff and defendant No. 3 Tilluram are real brothers and their ancestral residential house of their ownership is situated in Mohallah Sunar Gali, Bayana; the boundaries of which were mentioned in Para 1 of the plaint. The division of their house took place in between them about one year ago and after the division a common wall was raised in between their respective portions. It was further pleaded that there is one 'gali' (lane or narrow street), of common ownership and in the possession of the plaintiff and defendant No. 1, situated towards northern side of the portion of plaintiff's house. The said 'gali' was common property of the plaintiff and the defendant No. 1 and both are co-shares to the same. The drains, windows, ventilators of ground and first floor of the house of the plaintiff have opening in the 'gali'. The said 'gali' is the source of light and air to the house of the plaintiff and he has been enjoying the same since long. The waste-water of sewage, latrine and bathrooms, which have been constructed on projecting eaves at the first floor of the plaintiff's house covering the said 'gali', also passes through the said 'gali'. The drain of water of the house of the defendants also there in the said common 'gali'. The drain of water of the house of the defendants also there in the said common 'gali'. Therefore, this narrow space is a common 'girl' of the plaintiff and the defendant No. 1. It was further pleaded that the defendant No. 1 secretly sold his house on 9th February, 1989 to the defendant No. 2 Prahlad Kumar for a sum of Rs. 25,000/- and got the sale-deed registered on 10th February, 1989. The description of the house of the defendant No. 1 was given in Par 5 of the plaint. The plaintiff has a right of Pre-emption over the house belonging to the defendant No. 1 as the plaintiff and the defendant No. 1 both are co-sharer of the common 'gali' situated in between their houses; the plaintiff was and is willing to purchase the said house for a sum of Rs. 25,000/-; the defendant also did not give any notice to the plaintiff under Section 8 of the Rajasthan Pre-emption Act, 1966 (for short 'the Act of 1966'), therefore, the present suit was filed with a prayer that a decree of Pre-emption be passed in favour of the plaintiff and against the defendants No. 1 and 2 maybe directed to handover the possession of the disputed house after payment of Rs. 25,000/- by the plaintiff.
3. The defendants No. 1 and 2 filed their joint written statement on 27th September, 1989 wherein the contents of the plaint, as pleaded, were denied and it was pleaded that the house, the description of which were mentioned in Para 1 of the plaint, belongs to the plaintiff and the defendant No. 3 Tilluram. The house of the defendants is situated towards northern side of the house of the plaintiff and there is common narrow space (gali/lane) and defendants land in between the houses of both the parties. It was denied that the drains, windows and ventilators of the plaintiff's house have opening in the said common 'gali' since ling, but they have been there for the last 8 to 10 years. Earlier there was only one or two drains in the 'gali'. It was admitted that the defendant No. 1 Kundanlal had executed a sale-deed on 9th February, 1989 in favour of the defendant No. 2 Prahlad Kumar and the same w
