Back
2025 Supreme(Raj) 2214
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
CHANDRA SHEKHAR SHARMA, J.
Premchand S/o Shri Velji Panchal – Appellant
Versus
Mangilal S/o Shri Devchand Ji Lohar – Respondent
S.B. Civil First Appeal No. 414 of 2019
Decided On : 15-05-2025
For the Appellant : Narpat Ram
For the Respondents: Mahendra Kumar Gurjar, Pawan Singh
The mere existence of a common wall does not confer a legal right of pre-emption under the Rajasthan Pre-emption Act, 1966.
Headnote:(A) Rajasthan Pre-emption Act, 1966 - Section 6 - Right of pre-emption - Appellants challenged dismissal of their suit for pre-emption regarding ancestral property - Court found that mere existence of a common wall does not confer pre-emption rights under Section 6(1) - The appellants failed to establish their claim of pre-emption as they could not prove co-ownership or commonality of use beyond the wall - The trial court's findings were upheld. (Paras 11, 15, 17, 18)
(B) Legal principles - The right of pre-emption is a weak right requiring strict proof and cogent evidence - Co-ownership of a party wall does not equate to co-sharership under the Act. (Paras 15, 16)
Facts of the case:
The appellants-plaintiffs filed a suit for pre-emption after the respondents-defendants sold their house, claiming ancestral ties and a common wall as grounds for their right. The trial court dismissed the suit, leading to this appeal.
Findings of Court:
The court upheld the trial court's decision, affirming that the appellants did not establish their right to pre-emption.
Issues: The main issue was whether the appellants had a legal right of pre-emption based on the existence of a common wall.
Ratio Decidendi: The court ruled that mere ownership of a common wall does not grant pre-emption rights, emphasizing the need for clear legal and factual basis for such claims.
Result: Appeal dismissed.
JUDGMENT :
CHANDRA SHEKHAR SHARMA, J.
1. Appellants-plaintiffs - Premchand & Shantilal have preferred this Regular First Appeal under Section 96 of the Code of Civil Procedure challenging the impugned judgment and decree dated 10.04.2019 passed by the Additional District Judge, Sangwara, District Dungarpur in Civil Original Suit No. 09/2018, whereby the trial Court dismissed the suit filed by the appellants-plaintiffs for Pre-emption in respect of the property in question.
2. Facts leading to the filing of this first appeal are that on 18.02.2013 appellants-plaintiffs instituted Civil Original Suit No.09/2018 against the respondents-defendants with the averments that the appellants-plaintiffs are in possession of ancestral house measuring 73.9’ x 29’ situated at Chhota Bodigama as owners. The house of respondents-defendants Nos. 1-3 is situated towards southern side of appellants-plaintiffs house. It was further submitted that father of the appellants-plaintiffs namely Velji had constructed a house for father of defendant Nos. 1 and 2 measuring 73.6’ x 13.6’ having existed a common wall in between both the houses.
3. It was further alleged that the respondents-defendants had sold their house through registered sale-deed dated 18.09.2012 to defendant No.4 – Smt. Chanda Bai for a consideration of Rs.3.00 Lakhs. As soon as, the appellants-plaintiffs came to know about the said sale deed, they requested the respondents-defendants to cancel the said sale deed but the respondents-defendants refused to do so. Thereafter, the appellants-plaintiffs, sent a legal notice to the respondents-defendants on 20.12.2012 but the defendants did not move forward, thus, the appellants-plaintiffs filed a suit for Haq shufa (pre-emption) seeking cancellation of the said sale deed executed in favour of the respondent-defendant No.4.
4. The defendant Nos. 1-3 filed their joint written statement wherein while denying the contents of the plaint, it was pleaded that the house, though ancestral, was not constructed by the father of the plaintiffs – Velji rather it was constructed by ancestor of the respondents-defendants Shri Gangaram Ji. It was further contended that since the respondents-defendants are holding separate house, they need not to obtain prior consent of plaintiffs to sell the property in question and thus, a prayer for dismissal of the suit was made.
5. On the basis of the pleadings of the parties, the trial Court framed Five Issues on 13.07.2016, which are reproduced hereunder:
¼1½ D;k oknhx.k] çfroknhx.k la[;k 1&3 }kjk tks foØ; i= fnukad 18-09-12 ds }kjk çfroknh la[;k 4 dks edku foØ; fd;k x;k] gd'kQk (Pre-emption) ds vkèkkj ij Ø; djus ds vfèkdkjh gS\ &oknhx.k
¼2½ D;k oknhx.k gd'kQk ds vkèkkj ij çfroknhx.k la[;k 1&3 }kjk çfroknh la[;k 4 ds i{k esa fd;k x;k foØ; i= fnukad 18-09-12 dks jn~n djokus ds vfèkdkjh gS\ &oknhx.k
¼3½ D;k oknhx.k ds edkukr o çfroknhx.k la[;k 1&3 }kjk fofØr fd;s xbZ edku dh nhokj fljdrh ugha gksus ls oknhx.k dks gd'kQk dk vfèkdkj gkfly ugha gS\ &çfroknhx.k
¼4½ D;k oknhx.k dk okn i= viw.kZ U;k; 'kqYd ij gS\ &çfroknhx.k
¼5½ vuqrks"k
6. The appellants- plaintiffs, in support of their claim, produced in evidence PW1 - Premchand, PW2 - Shantilal, PW3 - Ramji Patidar and Exhibited documents Ex.1 to Ex.12. Whereas, respondents- defendants produced DW1 - Kamla in evidence. The learned trial court, after considering the submissions of both the parties, their pleadings and evidence available on the record, dismissed the suit of the plaintiffs.
7. Mr. Narpat Ram, the learned counsel for appellants-plaintiffs contended that the trial Court has committed a serious illegality in dismissing the suit of the plaintiffs for Pre-emption in respect of the disputed property. It is contended by the learned counsel for the appellants-plaintiffs that the house in question is ancestral house of the plaintiffs and the defendants and when the trial court categorically recorded a finding that the ancestors of the appellants and respondents are same an
