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PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH
HARKESH MANUJA
Yashpal kaur (since deceased) thr. Her lrs. – Appellant
Versus
Smt Kamlesh Chauhan – Respondent
JUDGMENT :
Harkesh Manuja J. (Oral)
1. By way of present appeal challenge has been laid to the judgments and decrees dated 26.07.2006 and 29.03.2012 passed by the Courts below, whereby, the suit for pre-emption filed at the instance of plaintiff-Mela Singh Virk while claiming himself to be tenant over the suit property-house (since deceased represented thr. his LRs.), stands dismissed.
2. Briefly stating, having pleaded that the suit property-house bearing No.632/633, Ward No.3 with New Number 312/9, Municipal No.26/9 measuring 96.67 sq. yards situated at Dairy Mohalla, Rohtak, was sold by defendant No.3/respondent No.3 in favour of defendants No.l and 2/respondents No.l and 2 vide registered sale deed dated 04.05.1998. It was further pleaded that the predecessor-in-interest of the appellants-plaintiffs happened to be a tenant over the house in question for the last 40 years against payment of rent @ of Rs. 16/- per month and thus, a right of pre-emption being in existence as per the Custom prevalent in the locality i.e. Dairy Mohalla, Rohtak, amongst tenants; he was entitled for grant of decree for pre-emption in respect thereof against payment of sale consideration of Rs. 56,000/-w
Right to pre-emption – Right of pre-emption in respect of urban immovable property vests in tenant – Land and immovable property are two different terms.
The right of pre-emption must be claimed against all parties involved in a sale; failure to do so results in dismissal of the suit.
The right of pre-emption is a very weak right.
(1) Right of pre-emption is a very weak right and could be defeated by all legitimate methods.(2) Pleadings – Omission of a single material fact would lead to incomplete cause of action and in that c....
A right of pre-emption must be substantiated at the time of decree; absence of such right leads to dismissal of the claim.
The Act was held to be prospective in operation and did not apply to sales completed before its commencement, as per Section 5 of the General Clauses Act, 1897 and Section 10 of the Act.
A claimant of tenancy must prove a contractual obligation to pay rent; mere possession does not confer tenancy rights.
Point of law: condition restraining from alienating his share cannot be imposed and such a condition is void. However, as above pointed out, the preemption clause available to the plaintiff by virtue....
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