Tara Chand vs Ganesha @ Ganpat Lal And Ors
2021 Latest Caselaw 11239 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil First Appeal No. 5/2010

Tara Chand S/o Late Sh. Mool Chand, age 45 years, R/o Mochiwada, Sirohi.

----Appellant Versus

1. Ganesha @ Ganpat Lal S/o Late Sh. Bhoora. Presently R/o Nawa-kheda, Near Railway crossing, Abu Road, District Sirohi.

2. Mohan S/o Late Sh. Bhoora, R/o Mochiwada, Sirohi.

3. Harish

4. Vinod

5. Ramesh

6. Rajesh All sons of Late Sh. Babulal, presently R/o Mochiyon-Ka- Mohalla, Bhinmal, District Jalore.

7. Smt. Panku W/o Late Sh. Babulal, R/o Mochiyon-Ka- Mohalla, Bhinmal, District Jalore.

8. Smt. Chandan W/o Sh. Chhagan Lal D/o Late Sh. Bhoora, R/o near Lalsapeer Temple, Undari, Sumerpur, District Pali.

9. Smt. Champa Devi w/o Sh. Sona Ram D/o Late Sh. Bhoora, R/o Krishnapuri, Sirohi.

10. Devi Chand S/o Late Sh. Dharmaji, R/o Mochiwada, Sirohi, Tehsil and District Sirohi.

----Respondent

For Appellant(s) : Mr. Sandeep Shah Ms. Pratyushi Mehta For Respondent(s) : Mr. Sukesh Bhati

HON'BLE MR. JUSTICE ARUN BHANSALI

Order

20/07/2021

The matter has come up before the Court on an application

filed by the appellant seeking early listing of the appeal on the

second stay application and another application filed by the

(2 of 3) [CFA-5/2010]

respondents seeking disposal of the appeal. Both the applications

are allowed. The matter is taken up for final disposal.

This appeal has been filed by the appellant aggrieved against

judgment and decree dated 22.10.2009 passed by Additional

District Judge (Fast Track), Sirohi, whereby, the suit filed by the

appellant under Section 11 of the Rajasthan Pre-emption Act,

1966, has been dismissed.

The appellant filed the suit inter alia based on a common wall

between the plaintiff and the defendants.

The trial court, after hearing the parties came to the

conclusion that based on the common wall a suit for pre-emption

cannot be maintained and though recorded findings on all the

issues, ultimately dismissed the suit.

Learned counsel for the respondents made submissions that

the issue raised in the appeal is no more res integra as the same

stands covered by Division Bench judgment of this Court in LR's of

Smt. Sire Kanwar Maloo v. Shri Daudas Mantri AIR 2008

Rajasthan page 13, whereby, the Division Bench came to the

conclusion that based on common wall the right of pre-emption

cannot be asserted.

Learned counsel for the appellant attempted to distinguish

the said judgment with the submissions that there are almirah in

the common wall and, therefore, the said judgment in the case of

Sire Kanwar Maloo (supra), would not be applicable.

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record

as well as judgment in the case of Sire Kanwar Maloo (supra).

The Division Bench in the case of Sire Kanwar Maloo (supra),

came to the following conclusion:

(3 of 3) [CFA-5/2010]

"41. If this is also viewed from the point of view of the statutory provision in the Rajasthan Pre-emption Act, 1966, then Clause ((iii) of Section 6 which has been struck down, engulfs the position of the owner of the house feeling aggrieved by sale, more specifically because the common wall having been partly owned by both the neighbours, can fit in the scheme of Part

(iii) of Sub-Section (1) of Section 6 of the Rajasthan Pre-emption Act, 1966 and thus, the same having been held un-

constitutional, no right can be seen in the neighbour, a Part owner of the wall to enforce pre-emption. Thus, in the ultimate conclusion we opine on the question as framed by the learned Single Judge as to whether a co-owner of the party wall can pre-empt the transfer of other immovable property under Section 6 (1) of the Act, in negative and hold that no such right would accrue to a part owner of a wall, call it by any name co-owner or co-sharer."

Once the Division Bench on interpretation of Section 6 of the

Act, came to the conclusion that based on common wall the right

of pre-emption would not accrue to the co-sharer / co-owner, the

plea raised that on account of almirah in the common wall, the

same would give right apparently, has no substance.

In view of the above fact situation, once it is held that the

appellant does not have any right of pre-emption under the Act,

no case for interference in the judgment impugned passed by the

trial court is made out. The appeal has no substance, the same is,

therefore, dismissed.

(ARUN BHANSALI),J 63-Sachin/-

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