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/-which was though offered to the respondents but not accepted. Hence, the present suit.

3. Upon notice, respondents-defendants chose not to contest and were thus, proceeded against ex-parte.

4. The Trial Court vide judgment and decree dated 26.07.2006 dismissed the suit while recording that the existence about custom of preemption in favour of tenants over properties situated in Diary Mohalla, Rohtak was not established on record and thus, no decree for pre-emption could be granted.

5. Aggrieved thereof, the appellants filed first appeal, which came to be allowed vide judgment and decree dated 13.05.2008, thereby granting decree for pre-emption in their favour on deposit of sale consideration.

6. Defendants No.l and 2 being aggrieved of the decision dated 13.05.2008 approached this Court having filed RSA-2738-2009, which came to be decided on 13.09.2011 and the matter was remanded back to the first Appellate Court for its fresh adjudication with the following observations:-

'Hence, in view of the aforementioned facts, there is force in the argument of learned counsel for appellants-defendants that the impugned judgment and decree passed by passed by learned first appellate Court cannot be sustained in the eyes of law. From these facts following substantial question of law arises for consideration in this regular second appeal:-

Whether learned first appellate Court has committed illegality in allowing the application for additional evidence filed by respondents-plaintiffs without giving any notice to present appellants-defendants and in reversing the judgment and decree passed by learned trial Court and in decreeing the suit filled by respondents-plaintiffs without hearing appellants-defendants?

In view of above discussion, the said question of law is decided in favour of present appellants-defendants and against respondents-plaintiffs.

In consequence thereof the present regular second appeal is accepted. The impugned judgment and decree passed by learned first appellate Court is set aside.

Learned first appellate Court is directed to decide the application filed under Order 41 Rule 27 CPC and the appeal filled by respondents-plaintiffs afresh after hearing both the parties.

Parties are directed to appear before learned first appellate Court on 14.10.2011 for further proceedings in accordance with the law.

In view of the fact that present litigation is pending since the year 1999, learned first appellate Court is directed to decide the same expeditiously and efforts be made to decide the same within six months from the next date of hearing. '

7. On fresh consideration, the first appellate Court though permitted the appellants to produce in additional evidence the judgment and decree dated 27.06.1939 as Ex. PA and Ex.PB, respectively, however, dismissed the appeal