Partial preemption is impermissible; abandonment of necessary parties renders the suit unsustainable.

VIRINDER AGGARWAL , J .

1. The appellants have preferred this Regular Second Appeal (hereinafter to be referred as “RSA”), challenging the judgments and decrees rendered by both the Courts below. The appeal has been filed with the primary grievance that the findings recorded by the learned Sub-Judge, 1st Class, as well as the learned First Appellate Court, are allegedly contrary to law, based on mis-appreciation of evidence, and result in substantial prejudice to the appellants.

2. The concise facts of the present case are that the respondents- plaintiffs instituted a suit seeking possession of the property by way of preemption of the sale-deed executed in favor of the appellants by defendants No.3 to 5 on 24.07.1986. During the pendency of the suit, the plaintiffs expressly abandoned their claim against defendants No.3 to 5, as recorded on 24.10.1986. Defendant No.1 actively contested the suit, whereas defendant No.2 initially remained ex-parte. However, the ex-parte proceedings against defendant No.2 were subsequently set aside, thereby enabling him to participate fully in the litigation.

3. Defendants No.1 and 2 contested the suit by contending that Plaintiff No.3 had prior knowledge of the sale-deed, as evidenced by his earlier suit titled ‘Mahender vs. Ganpat’ filed before the Court of Additional District Judge, Narnaul. Defendant No.2 additionally raised preliminary objections, asserting that the sale had occurred with the consent of the plaintiffs and that the suit was barred for partial preemption. Plaintiffs are not entitled to preempt sale as the Khewat of the plaintiffs and the vendors had already been separated, and the plaintiffs were no longer co-sharers in the property.

4. Following a meticulous examination of the pleadings and contentions of the parties, the Court framed the following issues for determination, with a view to thoroughly and effectively adjudicating the disputes between the parties:-

1. Whether the plaintiffs have superior right to pre-empt the sale in question against the vendee-defendants? OPP.

2. Whether the plaintiffs are estopped by the own act and conduct to bring the present suit? OPD.

1A Whether the dfendant No. 2 carried out any improvement over the suit land after purchasing it if so to what amount, he is entitled on account of expenses incurred on making improvements?OPD2

1B Whether the suit is bad being for partial pre-emption? OPD2

1C Whether the suit has been filed by the plaintiffs at the instance and for benefit of vendor if so its effect? OPD2

3. Relief

5. The parties were afforded ample opportunity to adduce evidence in support of their respective claims and defenses. Upon the conclusion of evidence and after hearing learned counsel at length, the learned Additional Senior Sub-Judge, Rewari, having carefully considered the pleadings, material on record, and submissions advanced, decreed the suit. Aggrieved by this judgment and decree, an appeal was filed before the learned Additional District Judge, Rewari, who partly allowed the appeal: the relief in respect of Khewat No.169, Khatoni No.195 was declined, whereas the preemption claim over the remaining suit land was upheld.

6. Challenging the aforementioned judgment and decree, the appellants filed the present appeal, which was admitted for hearing. Notice was duly issued to the respondents, of whom Nos.1 and 2 initially appeared but later failed to participate and were proceeded against ex-parte. The records of the Courts below were requisitioned for careful examination and consideration by this Court.

7. I have heard learned counsel for the appellants at length. His submissions have been considered in the context of the pleadings, evidence on record, an