IMPORTANT POINT
Right of Pre-emption of Co-sharer – On all cases where possession is delivered on the date of execution of sale deed, whether before or during execution thereof or soon thereafter on that day, it would be considered in law to be under sale and limitation would start from execution of sale deed.

JUDGMENT

Both first appeals have arisen out of two separate civil suits for pre-emption, wherein parties are common and some of issues related to law of pre-emption are also common, although facts and properties are slightly different but both appeals are tagged and with consent of learned counsel for both parties, have been heard together and, would stand decide by this common judgment.

2. Relevant facts, in nutshell to give rise both appeals are as under:—

2.1 One Damodar Lal (original plaintiff) claimed a right of preemption in properties sold by Chhoti Devi and Nirmala Devi (defendants No.2 and 3) situated in haveli three storied bearing Municipal No.1236, Khejron Ka Rasta, Chowkri Topkhana Desh, Jaipur on the ground of having common chowk, pole, nall, ravish etc. plaintiff claimed that he is a co-sharer in the haveli and has a right of pre-emption to purchase the another portion of haveli, sold by defendants NO.2 and 3 (who are also another co-sharers in the haveli) to vendees other persons namely, Kewal Chand and one Smt. Patasi Devi through different registered sale deeds. Hence, the plaintiff filed two separate civil suit for pre-emption & for possession.

2.2 Initially Damodar Lal instituted civil suit No.19/1976 (14/1980) on 22.01.1976 against Kewal Chand purchaser and Chhoti Devi and Nirmala Devi, vendors impleading them as party defendants No.1, 2 and 3. It was stated that the portion of haveli detailed in para No.3 of the plaint has been sold by defendants No.2 and 3 through registered sale deed dated 07.01.1975 to defendant No.1-Kewal Chand but sale deed was endorsed in books of Sub-registrar on 25.01.1975. It was stated that since plaintiff has a right of pre-emption and was/is agreed to purchase the sold out portion of haveli, but the sale deed was executed without his knowledge and without giving any prior notice of sale to him. Further it is stated that in the sale deed valuation has been shown as Rs.24,999/-, which is mentioned incorrectly and ostentatiously just to divest the right of pre-emption of the plaintiff whereas the actual sale consideration of Rs.12,999/- was paid by the purchaser defendant No.1- Kewal Chand, which is the actual value of the suit property. The plaintiff-Damodar Lal claimed that he is ready to pay the actual sale consideration of Rs.12,999/- or whatever the amount, directed by the court and his suit for pre-emption be decreed in his favour and possession of suit property be directed to delivered to the plaintiff.

2.2.1 Kewal Chand, the purchaser, defendant No.1 submitted his separate written statement and denied the right of pre-emption of plaintiff and also contended that the suit has been wrongly valued as Rs.12,999/- whereas the actual sale consideration is Rs.24,999/- which is rightly mentioned in the sale deed. The defendant No.1 contended that after purchasing the suit property through sale deed dated 07.01.1975, he has incurred huge amount in carrying out addition/alteration and repairing/maintenance work in the suit property, which is well within knowledge of the plaintiff. The plaintiff never asserted his right of pre-emption, as such plaintiff has waived his right of preemption and further suit is also barred by law of limitation. The defendant No.1 also raised a defence that the suit for pre-emption has been instituted for partial property and not for the entire sold out property, therefore, the suit is liable to be dismissed with cost.

2.2.2 Smt. Chhoti Devi and Smt. Nirmala Devi, the vendors and defendants No.2 and 3 submitted joint written statement and contested the suit stating inter alia that before selling out the suit property to defendant No.1, an oral offer was given to the plaintiff to purchase the suit property but he expressed his unability to purchase the suit property against sale consideration, as agreed to pay by defendants No.1 and thereafter only the suit property has been sold to defendants No.1, against consideration of Rs.24,999/- by executing a sale