Rajasthan High Court
Kunj Bihari vs Kewal Chand on 13 September, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil First Appeal No. 104/1990
Kunj Behari Lal S/o Late Shri Damodar Lal, resident of H. No.
1236, Khejron Ka Rasta, Chowkri Topkhana Desh, Jaipur (Legal
representative of Shri Damodar Lal since Deceased) (Died
during the pendency of appeal)
1/1. Panchi Devi W/o Kunj Behari lal, aged
about 65 years,
1/2. Radey Shyam S/o Kunj Behari lal, aged about 48 years,
1/3. Chiranji S/o Kunj Behari lal, aged about 43 years,
1/4 Lokesh S/o Late Kunj Behari lal, aged about 40 years,
Residents of House No. 1236, Khejron Ka Rasta, Jaipur.
1/5. Parvati Devi W/o Tara Chandji, D/o Late Kunj Behari Lal,
aged 50 years, Resident of Dada Bari, Kota.
1/6. Manji Devi W/o Raja Ram, D/o Late Kunj Behari Lal, aged
44 years, Resident of Shorti Bazari, Sawai Madhopur.
1/7. Rekha Devi W/o Anil Kumar, D/o Late Kunj Behari Lal, aged
38 years, Resident of Near Railway Station, Sanganer.
1/8. Sumita Devi W/o Ashokji, D/o Late Kunj Behari Lal, aged
35 years, Resident of Kamla Nehru Nagar, Jodhpur.
----Appellant-Plaintiff
Versus
Kewal Chand S/o Shri Rikhab Chand, R/O
Khejron Ka Rasta, Chowkri Topkhana Desh, Jaipur
........Defendant No.1
2. Smt. Chhoti Devi W/o Ballabhdas (Died).
3. Smt. Nirmala Devi D/o Ballabhdas W/o Satya Narain Sharma
(Died):-
3/1. Satya Narain Kalkar (Husband of Smt.Nirmala)
3/2. Shri Kuldeep S/o Shri Satya Narain,
3/3. Smt. Madhvi @ Meenu D/o Shri Satya Narain,
3/4. Smt. Bhuvneshwari @ Meenu D/o Satya Narain,
3/5. Kumari Shalini @ Seetu D/o Satya Narain,
All R/o Gali Sehlon, Gangauri Bazar, Ch. Purani Basit, Jaipur.
...Respondent Defendants No.2 and 3
4. Sita Ram S/o Shri Damodar Lal, R/o Pandhit Shivdeen Ka
Rasta, Kishanpole Bazar, Jaipur.
5. Satya Narain S/o Shri Damodar Lal, R/O Soniyon Ki Gali,
Khejron Ka Rasta, Jaipur.
6. Jugal Kishore S/o Shri Damodar Lal, R/O Khejron Ka Rasta,
Chandpole Bazar, Jaipur.
7. Smt. Anandi Devi W/o Shri Damodar Lal Ji Tamoli (Died)
8. Smt. Gopali D//o Damodar Lal Ji Tamoli W/O Ram Swaroop Ji,
Resident of Ghasiti Bazar, Ajmer.
9. Smt. Geeta D/o Damodar Lal W/o Meghraj,
R/O Soniyon Ki Gali, Khejron Ka Rasta, Jaipur.
(2 of 51) [CFA-104/1990]
---Proforma-Respondents LRs' of Plaintiff
Connected With
S.B. Civil First Appeal No. 2/1993
Kunj Behari Lal S/o Late Shri Damodar Lal, resident of H.No.
1236, Khejron Ka Rasta, Chowkri Topkhana Desh, Jaipur (Legal
representative of Shri Damodar Lal since Deceased) (Died
during the pendency of appeal)
1/1. Panchi Devi W/o Kunj Behari lal, aged about 65 years,
1/2. Radey Shyam S/o Kunj Behari lal, aged about 48 years,
1/3. Chiranji S/o Kunj Behari lal, aged about 43 years,
1/4. Lokesh S/o Late Kunj Behari lal, aged about 40 years,
Residents of House No. 1236, Khejron Ka Rasta, Jaipur.
1/5. Parvati Devi W/o Tara Chandji, D/o Late Kunj Behari Lal,
aged 50 years, Resident of Dada Bari, Kota.
1/6. Manji Devi W/o Raja Ram, D/o Late Kunj Behari Lal, aged
44 years, Resident of Shorti Bazari, Sawai Madhopur.
1/7. Rekha Devi W/o Anil Kumar, D/o Late Kunj Behari Lal, aged
38 years, Resident of Near Railway Station, Sanganer.
1/8. Sumita Devi W/o Ashokji, D/o Late Kunj Behari Lal, aged
35 years, Resident of Kamla Nehru Nagar, Jodhpur.
----Appellant-Plaintiffs
Versus
1. Kewal Chand S/o Shri Rikhab Chand, R/o
Khejron Ka Rasta, Chowkri Topkhana Desh, Jaipur.
.........Defendant No.1
2. Smt. Chhoti Devi W/o Ballabhdas (name deleted as per order
dated 09.01.1996).
3. Smt. Nirmala Devi D/o Ballabhdas W/o Satya Narain Sharma
(Died)
3/1. Satya Narain Kalkar (Husband of Smt. Nirmala)
3/2. Shri Kuldeep S/o Shri Satya Narain,
3/3. Smt. Madhvi @ Meenu D/o Shri Satya Narain,
3/4. Smt. Bhuvneshwari @ Meenu D/o Satya Narain,
3/5. Kumari Shalini @ Seetu D/o Satya Narain, All R/o Gali
Sehlon, Gangauri Bazar, Ch. Purani Basit, Jaipur.
4. Smt. Patasi Devi W/o Gulab Chand Ji (Died)
4/1 Gyan Chand S/o Shri Gulab Chand, R/o Plot No. 1236,
Khejron Ka Rasta, Chandpole Bazar, Chowkri Top Khana Desh,
Jaipur.
5. Sita Ram S/o Shri Damodar Lal, R/o Pandhit Shivdeen Ka
Rasta, Kishanpole Bazar, Jaipur.
6. Satya Narain S/o Shri Damodar Lal, R/O Soniyon Ki Gali,
Khejron Ka Rasta, Jaipur.
7. Smt. Anandi Devi W/o Shri Damodar Lal Ji Tamoli (Died)
8. Jugal Kishore S/o Shri Damodar Lal, R/o Khejron Ka Rasta,
(3 of 51) [CFA-104/1990]
Chandpole Bazar, Jaipur.
9. Smt. Gopali D//o Damodar Lal Ji Tamoli W/O Ram Swaroop Ji,
Resident of Ghasiti Bazar, Ajmer.
10. Smt. Geeta D/o Damodar Lal W/o Meghraj, R/O Soniyon Ki
Gali, Khejron Ka Rasta, Jaipur.
---Proforma-Respondents LRs of plaintiff
For Appellant(s) : Mr. V.K. Tamoliya
For Respondent(s) : Mr. Ajeet Kumar Bhandari, Senior
Advocate assisted by Mr. Jai Sharma
Mr. R.M. Jain
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
JUDGMENT RESERVED ON:- 03/08/2022
JUDGMENT PRONOUNCED ON:- September 13th, 2022
REPORTABLE:
1. 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 pre-
emption 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
(4 of 51) [CFA-104/1990]
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-
(5 of 51) [CFA-104/1990]
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 pre-
emption 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 deed dated 07.01.1975 and
possession has already been delivered, therefore, the present suit
for pre-emption filed by the plaintiff is barred by the principle of
estoppel and acquiescence. It was also contended that the suit is
undervalued and barred by limitation.
2.2.3 Trial court framed issues. Both parties adduced their
evidence and after full dressed trial of this suit, trial court has held
(6 of 51) [CFA-104/1990]
that the plaintiff has a right of pre-emption but his suit is barred
by limitation and therefore, the suit has been dismissed vide
judgment and decree dated 23.03.1990, where-against the first
appeal No.104/1990 has been preferred by legal representatives
of the original plaintiff.
2.3 The original plaintiff-Damodar Lal instituted one another civil
suit for pre-emption on 02.02.1978 (bearing suit No.15/1980)
against defendant No.1-Kewal Chand, defendants No.2 and 3
Chhoti Devi & Nirmala Devi (vendors) and defendant No.4 Patasi
Devi (purchaser) impleading them as defendants No.1 to 4. In his
subsequent suit, the plaintiff has claimed his right of pre-emption
in relation to the portion of haveli sold out by defendants No.2 and
3 to Patasi Devi defendant No.4 through registered sale deed
dated 09.09.1975, registered on 10.09.1975.
2.3.1 It has been stated inter alia that the plaintiff came to
know about this sale deed dated 09.09.1975 of Patasi Devi, when
the defendant No.1-Kewal Chand moved one application dated
04.04.1977 under Order 6 Rule 17 CPC for seeking amendment in
his written statement, in his previously instituted suit No.19/1976.
Through this application for amendment, defendant No.1 disclosed
that the defendants No. 2 and 3 sold another portion of haveli to
one Smt. Patasi Devi and thereafter, the defendant No.1 instituted
a civil suit for pre-emption against Patasi Devi (purchaser) on the
ground that since the defendant No.1 had already purchased the
another portion of haveli vide sale deed on 07.01.1975, the sell of
other portion of haveli to Patasi Devi vide sale deed dated
09.09.1975, therefore, defendant No.1 has acquired a right of pre-
emption over the portion of Patasi Devi. The suit for pre-emption
was decreed vide judgment dated 22.01.1977 in favour of
(7 of 51) [CFA-104/1990]
defendant No.1 and in compliance thereof, the defendant No.1 has
paid Rs.34,999/- to Smt. Patasi Devi and has acquired ownership
and possession of the portion of Patasi Devi on 09.03.1977.
2.3.2 The plaintiff stated that after filing of the application for
amendment dated 04.04.1977 by defendant No.1 in the first suit
No.19/1976, he inquired about the entire fact and then came to
know that the defendants No.2 and 3 sold another portion of
haveli by executing a sale deed dated 09.09.1975 (registered on
10.09.1975) against sale consideration of Rs.25,000/- in the name
of Patasi Devi and thereafter the defendant No.1 instituted a
collusive suit for pre-emption and obtained a decree dated
22.01.1977 in his favour in relation to the portion sold to Patasi
Devi. The plaintiff stated that in fact Patasi Devi happens to be the
Bhabhi of defendant No.1 and the sale deed dated 09.09.1975 in
the name of Patasi Devi is fictitious and indeed the another portion
was also purchased by defendant No.1 in the name of his Bhabhi
Patasi Devi and thereafter by playing a fraud and
misrepresentation, the defendant No.1 has procured a decree of
pre-emption dated 22.01.1975 in his favour by way of
compromise, which is null and void qua the plaintiff.
2.3.3 The plaintiff also submitted that in fact the actual value
of the portion of haveli sold to Patasi Devi through registered sale
deed dated 09.09.1975 is 11,000/- but in the sale deed the sale
amount has been shown as Rs.24,999/-, which is incorrect and
ostentatious. The plaintiff stated that he has primary and
preferential right of pre-emption to purchase the portion of haveli
for which the sale deed dated 09.09.1975 has been executed by
the defendants No.2 and 3 in favour of defendant No.4-Patasi Devi
and therefore, stating all such averments he prayed that his civil
(8 of 51) [CFA-104/1990]
suit for pre-emption and the possession, in relation to the
property sold out to Smt. Patasi Devi be decreed in his favour.
2.3.4 In the subsequent suit for pre-emption, defendant No.1
has submitted his written statement and contended that the
defendant No.1 has an equivalent right of pre-emption vis-a-vis to
the plaintiff in relation to the portion of haveli sold out to Patasi
Devi, since prior to that he had purchased the portion of haveli
through sale deed dated 07.01.1975 and his suit for pre-emption
has been decreed in his favour. Therefore, plaintiff can't claim
right of pre-emption against defendant No.1 and his suit is not
maintainable. Other objections were also raised including
limitation and it was contended that the plaintiff's suit for pre-
emption is liable to be dimissed.
2.3.5 Defendants No.2 and 3 set ex parte in this suit.
2.3.6 Defendant No.4 Smt.Patasi Devi the purchaser
submitted her separate written statement and denied the
plaintiff's claim of pre-emption. She submitted that the suit
property was purchased by her through registered sale deed dated
09.09.1975 against sale consideration of Rs.25,000/- and
obtained possession but thereafter the defendant No.1, filed civil
suit for pre-emption, which was decreed in his favour and
therefore, ownership has transferred to defendant No.1 and the
possession has been delivered to defendant No.1, after receiving
an amount of Rs.34,999/-, finally it was prayed that the suit
deserves to be dismissed.
2.3.7 In this subsequent civil suit No.15/1980 instituted by
plaintiff Damodar Lal, issues were framed and evidence was
recorded separately. Therefore, this suit for pre-emption has also
been dismissed on merits vide judgment and decree dated
(9 of 51) [CFA-104/1990]
14.09.1992 and thereagainst, the civil first appeal No.02/1993 has
been filed by legal representatives of original plaintiff-Damodar
Lal.
3. During pendency of both civil suits, the original plaintiff
Damodar Lal passed away and in his place his son Kunj Bihari Lal
was substituted. Kunj Bihari Lal filed both first appeals and during
first appeals, he has also passed away, therefore, his legal
representatives have been substituted, who are the present
appellants in both appeals would be referred to as "plaintiff". In
first appeal No.104/1990, respondents No.4 to 9 and in first
appeal No. 2/1993 respondents No.5 to 10 are other natural heirs
of deceased Damodar Lal (original plaintiff) and they are proforma
respondents. Respondent-defendant No.1 is alive and respondents
No.2, 3, vendor and Patasi Devi has also passed away. Other
respondents were contesting defendants before the trial court are
hereinafter referred to as 'defendants'.
4. In both civil suits, the trial court has acknowledged the right
of pre-emption of the plaintiff, being co-sharer in the haveli and
having common chowk, pole, nall, ravish etc. but has dismissed
the suits on the ground of limitation as well as on the basis of
other grounds.
5. The Rajasthan Pre-emption Act, 1966 (hereinafter referred to
as 'Act, 1966) is a special law which deals with the special branch
of civil law relating to pre-emtpion and if the source of origin of
present special law is examined then, it transpires that the same
has originated out of customary law as recognized under the
personal law of Muslim. This is a special law and its provisions
includes substantial as well as procedural law and this law is local
law and technical too. It's main object is to prevent apprehended
(10 of 51) [CFA-104/1990]
inconvenience to the person claiming right of pre-emption. Apart
from the provisions enumerated under the Act of 1966, the law of
pre-emption has also been developed by judicial precedents.
According to the principle of judicial precedents, the right of pre-
emption emerges under the Act of 1966 is of course a legal and
statutory right but this has been considered as a weak right as
firstly, this is not indefeasible right and secondly, this right can be
defeated by all legitimate methods as permissible in law.
6. This court is exercising its jurisdiction in there appeals under
Section 96 of Civil Procedure Code and would abide by the
provisions of Order 41 CPC, meant to deal with appeals from the
original decree. It is no more res integra that the first appeal is a
valuable right of parties and unless restricted by law, the whole
case is open for re-hearing, both on questions of fact and law.
S.B. Civil First Appeal No. 104/1990:-
7. Learned counsel for plaintiff argued that the trial court has
rightly held while deciding the issue no.1 that the plaintiff has a
right of pre-emption to purchase the suit property, however,
committed an error of fact and law while deciding the issue No.4
related to limitation and has erred in dismissing the suit on the
ground of limitation. He argued that although sale deed was
executed on 07.01.1975 but it came to be registered in books of
Sub-registrar on 25.01.1975, therefore, the civil suit for pre-
emption filed on 22.01.1976 is well within limitation of one year,
from the date of registration of sale deed. He submitted that the
limitation should be counted from the date of registration of the
sale deed i.e. 25.01.1975 and by applying second part of Article
97 of the Limitation Act, 1963, the plaintiff's suit be treated within
(11 of 51) [CFA-104/1990]
limitation as such the impugned judgment is liable to be quashed
and the plaintiff's suit for pre-emption deserves to be decreed.
8. Learned Senior Counsel for defendants would submit that a
right of pre-emption is though a legal statutory right but it is a
very weak right in sense that the same can be defeated by all
legal means available to the vendee. He has urged following
arguments from the record and with the aid of statutory
provisions; to contend that suit is liable to be dismissed and has
rightly been dismissed.
a) Suit is clearly barred by limitation, as first part of
Article 97 applies and limitation starts from
07.01.1975, suit was filed after expiry of statutory
limitation of one year from that date.
b) Suit for pre-emption was filed for partial property
which is not maintainable by virtue of proviso to
Section 11 (1) of the Act of 1966 and the trial court
has committed error of law in allowing the application
for amendment filed by the plaintiff to add one room
and ravish in the suit property while passing the
impugned judgment and decree dated 23.03.1990. He
has urged that respondents have filed cross-objection,
challenging the impugned judgment to the extent of
allowing application under Order 6 Rule 17 CPC and
deciding issue No.3 in favour of plaintiff and against
defendants.
c) Plaintiff has instituted the present suit for pre-
emption, including three shops in the suit property
purchased by defendant No.1 under the sale deed
dated 07.01.1975 and by virtue of Section 5 (1) (a) of
the Act of 1966, right of pre-emption does not accrue
against the shops. If the shops are excluded, the
defendant No.1 becomes a co-sharer in the haveli and
gets an equal status vis-a-vis to the plaintiff and
therefore, right of pre-emption calimed by plaintiff is
(12 of 51) [CFA-104/1990]
not enforceable against the defendant No.1 having
acquired a similar status of co-sharer.
d) As per Section 15 of Act, 1966, the right of pre-
emption claimed by the plaintiff must be subsisting at
the time of passing the decree for pre-emption. The
defendant No.1 had acquired status of co-owner in the
haveli by obtaining ownership and possession of
another portion of haveli from another vendee Patasi
Devi, by virtue of a decree for pre-emption dated
22.01.1977 which has been executed on 09.03.1977
and the subsequent suit for pre-emption No.15/1980
instituted by plaintiff on 02.02.1978 has been
dismissed on merits vide judgment dated 14.09.1992.
The certified copy of judgment and decree dated
14.09.1992 has been produced on record alongwith
the application under Order 41 Rule 27 CPC. His
application deserves to be allowed and now when the
suit for pre-emption has been dismissed by the trial
court, at the time of deciding the first appeal, the right
of pre-emption claimed by the plaintiff does not
subsist, therefore, suit for pre-emption cannot be
decreed at this stage by virtue of Section 15 of the
Act, 1966.
e) Right of pre-emption claimed by the plaintiff
stands waived by the conduct of plaintiff, as such
plaintiff has either lost his right of pre-emption or is
estopped to enforce the same and therefore, his suit
is not liable to be decreed on this count also.
9. Heard learned counsel for both the parties and perused the
material available on record as also go through the relevant
statutory provisions of law and judgments cited by both the
counsel.
10. At the outset, it may be noticed that the learned trial court
while deciding the issue No.1 has observed that the plaintiff has
(13 of 51) [CFA-104/1990]
common chowk, pole, nall, ravish etc. in the haveli and this fact
has also been admitted by the defendant No.1 in his cross-
examination as also mentioned in the sale deed dated 07.01.1975
and therefore, plaintiff has right of pre-emption on this basis,
issue No.1 has been decided in favour of plaintiff. Defendants have
not challenged findings of issue No.1 to this extent but have
contested that the plaintiff's right for pre-emption is not liable to
be succeed qua the defendant No.1 on account of various other
legitimate grounds. The grounds raised by the defendant No.1 to
decline the decree of pre-emption in favour of plaintiff would be
discussed in later part of judgment.
11. It may also be noticed that initially in the plaint, the plaintiff
disputed the valuation of suit property as narrated in the sale
deed and therefore, issue No.2-a and 2-b were framed. The trial
court has decided issue No.2-a and 2-b against the plaintiff
observing that the plaintiff has miserably failed to prove that the
actual market value of the suit property was 12,999/- and not
Rs.24,999/- which is mentioned in the sale deed. The plaintiff, in
this first appeal, has not assailed the findings of issue No.2-a and
2-b passed against him, therefore, the same do not fall for
consideration by this Court. Issue No.5, pertains to improper
valuation of suit and payment of less court fee and as per the
findings of issue No.2-a and 2-b, issue No.5 also goes against the
plaintiff but the same is not under challenged in the first appeal,
hence, the findings of issue No.5 are not required to be interfered
with.
12. As far as other issues, issue No.3, 4, 6, 7 and 8 including the
issue of relief are concerned, the same would be answered while
(14 of 51) [CFA-104/1990]
determining the points for determination, which arise for
consideration by this Court in the present first appeal.
13. According to rival contentions of both parties and as per
pleadings, evidence and other material on record, the following
points for determination have emerged in the present first appeal
for consideration by this Court:-
"I) Whether plaintiff's suit for pre-emption is within
limitation?
II) Whether plaintiff's suit for pre-emption remains for
partial properties and cannot succeed?
(a) Whether the trial court committed error of law in
allowing the application for amendment in plaint and
what is the effect of allowing or disallowing the
application under Order 6 Rule 17 CPC filed by the
plaintiff?
(b) What is the effect of inclusion of three shops in
the present suit for pre-emption?
(c) What is the effect of dismissal of another suit for
pre-emption filed by the plaintiff in relation the
properties purchased by Smt. Patasi Devi vide
judgment and decree dated 14.09.1992, certified copy
is produced alongwith application under Order 41 Rule
27 CPC?
III) Whether plaintiff's right of pre-emption is hit by the
principles of acquiescence and waiver and plaintiff has lost
his right or estopped from enforcing the same in law?
POINT WISE DISCUSSION:-
(I) LIMITATION
14. Plaintiff has instituted the present civil suit on 22.01.1976.
The sale deed in question was executed and presented for
(15 of 51) [CFA-104/1990]
registration on 07.01.1975 and was endorsed in the books of Sub-
registrar on 25.01.1975. According to the plaintiff, the limitation
should be counted from 25.01.1975 when the sale was completed
and sale deed was registered in the books of Sub-registrar and
therefore, his suit filed on 22.01.1976 is well within period of
limitation of one year. Whereas according to defendants, the
limitation should be started when the purchaser obtained the
physical possession of the subject property under the sale and
since the possession of suit property was obtained on 29.09.1974,
28.10.1974, 25.12.1974 and 07.01.1975, therefore at the most,
the limitation starts w.e.f 07.01.1975 when the whole possession
of suit property had been taken and sale deed was executed and
presented for registration and by virtue of Section 21 of the Act of
1996 and as per the first part of article 97 of the Limitation Act,
1963, the present civil suit stands barred by limitation.
15. Period of limitation and when limitation starts, to exercise
the right of pre-emption is provided under section 21 of the Act of
1966 which, in turn refers to article 97 of the first schedule of the
Limitation Act, 1963. For ready reference Section 21 reads as
under:-
"21. Special provision for limitation.- (1) Subject to the
provisions contained in the proviso to sub-section (I) of
section 5, the period of limitation, in any case not provided
for by article 97 of the First Schedule to the Limitation Act,
1963 (Central Act 36 of 1963) for a suit to enforce the right
of pre-emption under this Act shall, notwithstanding
anything contained in article 113 of the said schedule of the
said Act, be one year from the date on which,-
(16 of 51) [CFA-104/1990]
(a) in the case of sale made without a registered sale
deed. The purchaser takes under the sale physical
possession of any part of the property sold, and
(b) in the case of a foreclosure, the final decree for
foreclosure is passed.
(2) The period of limitation for a suit to enforce the right of
pre-emption which has accrued before the commencement of
this Act shall, notwithstanding anything contained in the said
Limitation Act, in no case exceed one year from the
commencement of this Act."
16. Bare reading of the statutory provisions of Section 21 reveals
that it is confined to following two sets of cases;
i) the disputed property is capable of delivery of
physical possession; and
ii) where the property is one covered by a decree for
foreclosure legally passed by a competent court of civil
jurisdiction.
This Section is silent as to a property which is not capable of
delivery of physical possession but pertaining which a transfer
deed is only executed and registered. To such cases, article 97 of
the Limitation Act, 1963 would apply. If a combined application of
Section 21 of Act, 1966 and article 97 of the Limitation Act, 1963
is considered, then the period of limitation would be computable
according to the following table:-
Nature of Transfer Period of Limitation Time from which period
1 2 begins to run
1. In case of sale made One Year From the date of
without a registered purchaser takes under the
sale deed sale physical possession
of whole or any part of
the property sold.
2. In case of final decree From the date on which
foreclosure, one year the final decree for
foreclosure is passed
(17 of 51) [CFA-104/1990]
3.Where instrument of One Year (I) When the purchaser
sale is registered takes under the sale
sought to be impeached,
physical possession of the
whole or part of the
property sold, or
(ii) Where the subject
mater of the sale does not
admit of physical
possession of whole or
part of the property, when
the instrument of sale is
registered.
Item (1 and 2) originated from Section 21 and item (3)
comes out from article 97 of the Limitation Act.
17. In the case at hand, the sale deed dated 07.01.1975 is
registered instrument and suit property is an immovable property
and therefore, in the present case, Article 97 of Limitation Act
comes in play. As per item (3) of table where the instrument of
sale is registered, limitation should be counted from the date
when purchaser takes physical possession of the whole or part of
the property under sale and in such cases first part of article 97
would apply. The second part of article 97 would apply where the
subject matter of sale does not admit of physical possession of the
subject property then, limitation would be counted from the date
when the instrument of sale is registered.
18. In the present case, the sale deed dated 07.01.1975
(Exhibit-A/1) contains a recital that the vendor has handed over
the actual and physical possession of the property to the
purchaser. The sale deed is an admitted document between the
parties. The original plaintiff-Damodar Lal(PW/1), in his evidence
in chief nowhere disputed the transfer of physical possession of
the property to the purchaser i.e. defendant No.1, by the time of
execution of the sale deed dated 07.01.1975 rather admits in his
(18 of 51) [CFA-104/1990]
cross-examination that he came to know about the sale of subject
property, a week before the 'Makar Sankranti' prior to four years.
His statement was recorded on 22.05.1979. By counting the
period of four years and a week before the 'Makar Sankranti'
festival from the date of recording his evidence, the date comes to
07.01.1975. 'Makar Sankranti' in Jaipur is celebrated on the fixed
date of 14th January of each year. PW/1 also admits that the
defendant No.1 started addition/alternation and repairing work in
the suit property after purchasing the same. PW/2 to PW/6 are
witnesses who deposed their evidence related to the valuation of
the suit property and do not depose a single statement about the
transfer of physical possession of suit property.
19. The defendant No.1, who is purchaser, deposed his
statements as DW/4 has clearly stated that before the execution
of sale deed dated 07.01.1975 (Exhibit-A/1), an agreement to sale
was written on 29.09.1974 (Exhibit-A/3) and at that time,
Rs.4,000/- was paid to vendors through receipt (Exhibit-A/4) and
possession of one shop was delivered to him. DW/4 further states
that Rs.16,000/- was paid to vendors through demand draft on
28.10.1974 (Exhibit-A/5) and possession of two rooms at ground
floor and two room at first floor were taken and thereafter
possession of one room was taken on 25.12.1974 when
Rs.3,000/- was paid through receipt (Exhibit-A/6), lastly, full and
final physical possession of remaining portion of property under
sale was taken on 07.01.1975 i.e. on the date of execution of the
sale deed.
20. Therefore, as per the evidence of both parties and according
to material on record, it appears that the defendant No.1
(19 of 51) [CFA-104/1990]
(purchaser) has taken the physical possession of the suit property
by 07.01.1975, under the sale deed dated 07.01.1975, which is
sought to be impeached herein and plaintiff has nowhere disputed
this factum of delivery of possession.
21. Learned counsel for both parties have relied upon a recent
judgment of Hon'ble Supreme Court delivered in case of
Raghunath (D) through LRs. Vs. Radha Mohan (D) through
LRs. [(2020) SCC Online SC 828] wherein the provisions of
Section 21 of the Act of 1963 and Article 97 of the Limitation Act,
1963 were discussed. In that case the issue of limitation for suit of
pre-emption arose in context to execution of more than one sale
deeds and issue for consideration was as to from which one of the
date of sale deed, the limitation would start. Therefore, the ratio
decidendi expounded in that judgment is not of immense help to
either of the parties in the facts of present case.
22. The Hon'ble Supreme Court, in case of Goja Bai Vs. Ganga
Bai Ramchandra Pawar and Ors reported in [(1980)2 SCC
329] considered the issue of limitation for enforcement of the
right of pre-emption, which in that case was conferred between
the parties by way of a compromise decree in a partition suit. In
that case, the suit for pre-emption was decreed by the trial court,
however in appeal, the High Court dismissed the suit for pre-
emption on the ground of limitation. The High Court held that the
suit for pre-emption was filed after the expiry of one year from the
date of delivery of possession of the land by respondent No.1 to
the respondent No.2 pursuant to the impugned sale. Such findings
of the High Court were affirmed by the Hon'ble Supreme Court.
Thus, the period of limitation, for the purpose of enforcement of
(20 of 51) [CFA-104/1990]
the right of pre-emption in case of immovable property was
allowed to be counted from the date of delivery of possession of
the property under sale sought to be impeached.
23. In case of Sardar Singh Vs. Daleep Kaur and Ors
reported in [AIR(1981) Punjab and Haryana, 340], the
Division Bench considered the issue of limitation under Article 97
of the Limitation Act for the suit for pre-emption. The point for
consideration was whether for purpose of first part of Article 97 of
the Limitation Act, 1963, physical possession of the property sold
would be deemed to have passed on the date of execution of the
sale deed even if delivered earlier under the intended sale. The
court opined that the property under the sale was in possession of
vendor, moment somebody else comes in possession of that
property, wholly or in part, there is immediate notice of change of
possession from the owner to a third person, giving notice to the
pre-emptor to find out as to in what capacity the third person has
come in possession of the property. If it is under a sale then the
limitation for pre-emption would start from the date of taking of
possession. The relevant paragraph No.8 of that judgment is being
quote hereunder:-
"8. On the interpretation made by us above, it has
to be seen on the facts of the present case whether
the first part, would apply or the second part. We are
of the firm view that the first part wold apply and not
the second part. In the present case, the sale deed
was executed on 1st December, 1975, and the
possession was also delivered on that day although
before the execution of the sale deed. The moment
the pre-emptor would come to know that the vendees
have come in possession of the property, he will have
(21 of 51) [CFA-104/1990]
to find out as to when did the occupiers purchased
the property. The moment this equity is made, it
would transpire that the sale deed was executed on
1st December, 1975, which there is a clear recital
that physical possession of the property has been
delivered to the vendees, which possession would be
under the sale which is sought to be impeached.
Therefore, the limitation would start from 1st
December, 1975, and it would be wholly immaterial
whether possession is taken before the sale deed was
written or while it was being written by the petition
writer or after it was completed and signed by the
parties. In all the three eventualities the possession is
being delivered under the sale which is sought to be
pre-empted by the pre-emptor, On these facts, the
second part of the Article cannot apply as on 1st
December, 1975, the subject -matter of sale admitted
of delivery of physical possession. As already pointed
out, the second part applies only where the vendor is
out of deliver physical possession of whole or part of
it, it is impossible for him because somebody else is
already in possession of the property under some
colour of the either a tenant or mortgage etc. Once
the second part would not apply and first applies,
there can be no other interpretation of the first part
than the one taken by us. Under the first part, the
only other possibility is where the pre-emptor is able
to show that possession was not delivered by the
vendor to the vendee on the date of execution of the
sale deed but was delivered some time thereafter. In
that eventuality, the limitation would start neither
from the date of execution of the sale deed nor from
the date of registration thereof but from the date
when physical possession of the sold land is proved on
the record to have been delivered. Therefore, if no
such date is proved by the pre-emptor, it would
always be the date of execution of the sale deed.
(22 of 51) [CFA-104/1990]
Therefore, we have no doubt that in all cases where
possession is delivered on the date of execution of the
sale deed, whether before or during the execution
thereof or soon thereafter on that day, it would be
considered in law to be under the sale and the
limitation would start from the execution of the sale
deed."
(emphasis supplied)
24. The Hon'ble Division Bench of High Court of Punjab and
Haryana in case of Sardar Singh (Supra) considered the case of
Hon'ble Supreme Court delivered in case of Ram Saran Lall and
Ors. Vs. Domini Kuer and Ors [AIR(1961) SC 1747] which
has been referred herein by learned counsel for appellants. It was
observed that in that case which arose under the Mohammedan
law, the provisions of Article 97 of the Act did not fall for
consideration in that case. It was further observed that Article 97
provides for two starting points of limitation, first one being from
the date of taking of possession and other being from the date of
registration. This court has its concurrence with the view taken by
the Division Bench and finds that the present case, where the
physical possession of the suit property has been delivered by or
before the execution of the sale deed dated 07.01.1975, the
limitation would start from that date and not from the date, when
the sale deed was registered in the books of Sub-Registrar.
25. Thus, the decision of Hon'ble Supreme Court in case of
Ramsaran Lal (supra) does not render any help the appellants in
the present case.
26. In another case of Chhaju and Ors. Vs. Mst. Bharpai
reported in [AIR(1983) Punjab and Haryana 203], the Single
(23 of 51) [CFA-104/1990]
Bench of Punjab and Haryana High Court observed that limitation
for the suit of pre-emption would start from the date of execution
of sale deed, in those cases wherein the possession is delivered
either before or during the execution or soon thereafter the
execution of the sale deed on the same date and not from the
date when the sale deed was endorsed in the books of registering
authority.
27. Learned counsel for appellants has placed reliance on the
judgment of Pepsu High Court, AIR (1956) Pepsu 17 in case of
Mst. Phula Wanti & ors. Vs. Kashmiri La, wherein Article 10 of
the old Limitation Act, 1908 was discussed. It was held in this
judgment that the first thing to be considered in applying Article
10 is to see whether the subject of sale admits of physical
possession, on the date of sale. If it does, limitation of one year
starts from the time when the purchaser takes physical possession
of the whole of the property sold. If, it does not then the second
part of third column of Article will apply, in cases where there is a
registered instrument of sale and the time will commence from the
date of registration. Article 10 of the Old Limitation Act, 1908 is
paramateria to Article 97 of the Limitation Act, 1963 except the
changes that in present Article 97, additioning words "the whole or
part of the property sold" are added, whereas under the old Article
"only the whole property sold" was there.
28. Learned counsel for plaintiff has placed reliance upon a
judgment of Division Bench dated 23.01.1993 passed in D.B. Civil
Special Appeal No.3/1991 titled as Ishwar Kaur Vs. Majore
Rajindra Kumar Kala and Anr. In that case the possession was
delivered against an agreement to sale and therefore, the Hon'ble
(24 of 51) [CFA-104/1990]
Supreme Court observed that the limitation for the pre-emption
suit would start from the date when the sale was completed and
when the sale deed was registered. This court after going through
the entire judgment has observed that in that case, there was no
difference on the date of execution of sale deed and the date of
registration of sale deed in the books of the Sub-registrar.
Whereas in the present case at hand, the sale stands complete on
the date of execution of the sale deed dated 07.01.1975 itself,
when sale deed was presented for registration. Since entire sale
consideration has been paid and the possession of suit property
has also been delivered prior to and at least by the time of
execution of the sale deed on 07.01.1975, therefore, sale stands
completed on that day itself. The subsequent date i.e. 25.01.1975
when the sale deed was endorsed in the books of Sub-registrar,
may not be taken for starting point of limitation because the
terminus a quo for limitation is that factum of transfer of physical
possession of property under the sale. In the facts of present
case, the limitation starts under the first part of Article 97 when
possession was taken by purchaser and therefore, this Judgment
does not render support to appellants being on different facts.
29. Learned counsel for plaintiff has placed reliance upon the
judgment of Radhakishan Laxminarayan Toshniwal vs.
Shridhar Ramchandra Alshi and Ors. [AIR (1960) SC 1368].
In that case, the suit for pre-emption was filed on the basis of sale
between the parties through an agreement to sale, therefore, the
suit for pre-emption was not held maintainable. In the present
case, sale sought to be impeached is a registered sale deed.
(25 of 51) [CFA-104/1990]
30. Learned counsel for plaintiff submitted that cause of action to
enforce the right of pre-emption arises when the sale is complete
and sale become complete only after registration of the sale deed.
In support, he has referred the judgment of Patna High Court in
the case of Domini Kuer Vs. Ramsaran Lal & Ors.
[AIR(1957)Patna 545], Kumar Gonsusab & ors. vs.
Mohammed Miyan Urf Baban and Ors. [(2008)10 SCC 153]
and Hiralal Agrawal, Etc vs Rampadarath Singh & Ors., Etc
[AIR (1969) SC 244]. There is no disagreement about such
proposition of law as expounded in judgments referred
hereinabove. Nevertheless, the issue for consideration by this
Court in the present case is as to when limitation would start for
filing a suit for pre-emption in case where the physical possession
of the suit property either whole or in part has been transferred
and the sale is made through a registered instrument of sale. The
issue falls within ambit of Article 97 of Limitation Act and has been
answered in an unambiguous terms that if physical possession
either whole or in part of the property under the sale is
transferred to the purchaser, the limitation would start from that
date but where the subject matter of the sale does not admit of
physical possession either whole or part, limitation would start
when the instrument of sale is registered. These judgments are
not helpful for determining the issue of limitation, as arose in the
present case.
31. Learned counsel for plaintiff has also argued that the factum
of transfer of possession of the suit property may not be
adjudicated solely on the basis of recital in the sale deed as that is
a weak evidence. In support, reliance has been placed on the
(26 of 51) [CFA-104/1990]
judgment of Hon'ble the Supreme Court, in case of Sarmukh
Singh And Anr. vs Karam Singh And Ors. [(1969)2 UJ 621
SC] and Mst. Phula Wanti & ors. Vs. Kashmiri La [AIR
(1956) Pepsu 17].
It is no doubt that mere recital about the transfer of
possession in the instrument of sale is solely not suffice to
conclude the delivery of possession and some additional attendant
circumstances are also required to be looked into. The principle of
law as expounded in the aforementioned judgments is not in
quarrel. But as far as the present case is concerned, the factum of
delivery of physical possession of the suit property has been
discussed and held proved after consideration of statements of
witnesses of defendant No.3 and defendant No.1 (DW/4), and on
the basis of admission of plaintiff (PW/1), apart from recital of
transfer of possession in the sale deed dated 07.01.1975 which
has not been denied or disputed by the plaintiff in any manner. It
is not the case here that only on the basis of recital in the sale
deed dated 07.01.1975, the court has concluded that the
purchaser has taken the possession of the suit property under the
sale sought to be impeached by or before the execution of the sale
deed dated 07.01.1975. Thus, other contemporary and
corroborative evidence is available on record, to prove the recital
of transfer of possession of suit property as mentioned in the sale
deed.
32. In the present case, the issue No.4 has been framed as to
whether the suit filed by the plaintiff is barred by limitation. The
trial court, while deciding the issue No.4 has recorded a fact
finding that since the possession of the suit property has been
(27 of 51) [CFA-104/1990]
transferred to the purchaser by or before the execution of the sale
deed dated 07.01.1975 and the plaintiff Damodar Lal himself
admits in his cross examination dated 22.05.1979 that he came
to know about the sale of suit property a week before the 'Makar
Sankranti' prior to four years from the date of his statement. The
period touches to the date i.e. 07.01.1975, therefore, according to
trial court also the limitation has been held to be started from
07.01.1975. Finally, the issue No.4 has been decided in favour of
defendants and the suit has been held as barred by limitation by
the trial court. This court fully concur with the findings of the trial
court and concludes that the limitation for the present suit for pre-
emption starts w.e.f. 07.01.1975 and therefore, the suit filed on
22.01.1976 i.e. after expiry of one year to the limitation as
provided under Article 97 of the Limitation Act, 1963, cannot be
treated within limitation.
II. PRE-EMPTION'S SUIT FOR PARTIAL PROPERTY:-
33. As has been pointed by the counsel for respondent that
proviso to Section 11 (1) of Act, 1966 envisages that suit to
enforce right of pre-emption shall not lie under the Act of 1966, in
respect of a portion only of the immovable property transferred,
and exception to this rule of law is when, the property under sale
includes some unpre-emptable property, then suit may lie in
respect of the portion which is pre-emptable only. In the present
case, plaintiff has not included the room with ravish at first floor
which is included in property under sale and pre-emptable
property but has included three shops at ground floor, against
which right of pre-emption does not accrue and fall within the
category of non pre-emptable property.The counsel for respondent
(28 of 51) [CFA-104/1990]
has vehemently submitted that suit cannot be decreed in either
way and deserves to be dismissed on this count also.
34. In the present case, defendant No.1 has raised an objection
in the written statement that the plaintiff has filed the present suit
for pre-emption for partial properties and which is not liable to
succeed. On such objection, issue No.3 has been framed. Later on,
after conclusion of evidence of the parties and at the stage of final
arguments, plaintiff moved an application under Order 6 rule 17
CPC to add one room with ravish, situated at first floor in the
haveli, to include in the suit property. This application was
opposed by defendants but the trial court deferred the application
to be considered at the time of final hearing and while deciding
the suit finally vide judgment impugned dated 23.03.1990,
allowed application under Order 6 Rule 17 CPC and permitted the
plaintiff to include the room with ravish in the suit property and
therefore, as a consequence the issue No.3 has been decided in
the manner that after allowing amendment in plaint the left one
portion of property under sale has been added in the suit property
thereof, the suit does not remain for partial property as much as
has been decided defendant No.1.
35. Defendant No.1-respondent No.1, by way of filing cross
objection, has disputed findings of issue No.3 and has challenged
the impugned judgment to the extent of allowing plaintiff's
application under Order 6 rule 17 CPC. That apart, learned counsel
for defendants have argued that in the suit property, three shops
at ground floor are included to which, the right of pre-emption
does not accrue therefore, for this reason also, the plaintiff's suit
for pre-emption is not liable to be decreed.
(29 of 51) [CFA-104/1990]
Defendants/respondents have also produced an application under
Order 41 Rule 27 CPC to place on record the judgment and decree
date 14.09.1992.
Now the points, pointed out hereinabove, are being
discussed hereunder one by one:-
(a) Application under Order 6 Rule 17 CPC of plaintiff.
36. The plaintiff moved an application under Order 6 Rule 17 CPC
on 19.02.1980 when the suit was at the stage of final hearing, to
include one southern side room with ravish situated at first floor in
the suit property, therefore, it is not disputed that in the original
plaint, instituted on 22.01.1976, the suit property does not include
the entire property under sale to which right of pre-emption
accrues and suit remains for partial property only. It is more than
clear that on the date of filing the application for amendment i.e.
19.02.1980, a fresh suit for pre-emption in relation to the room
sought to be added by way of this application, becomes time
barred and therefore, a right has accrued in favour of defendants,
firstly to contend that the original suit remains for partial property
and secondly the belated amendment which has become time
barred, could not have been allowed as the same violates the legal
right accrued to defendants.
37. As per the material on record, it appears that in the sale
deed dated 07.01.1975 (Exhibit-A/1), the room at first floor was
not mentioned, though it was included in the property under sale
and shown in the map appended with the sale deed. Later on,
defendants got executed a corrigendum sale deed dated
09.09.1975 and the error of not indicating the room in the sale
deed, was rectified. Defendants produced this corrigendum deed
(30 of 51) [CFA-104/1990]
dated 09.09.1975 on record before the trial court on 18.03.1977
(Exhibit-A/2). The defendant No.1, when appeared as witness
DW/4 on 05.07.1979 deposed evidence in support of his objection
taken in the written statement and regarding which the issue No.3
was specifically framed, to the effect that the room with ravish
situated at first floor has not been included by the plaintiff in the
suit property. Thereafter when whole evidence of defendant was
concluded and plaintiff has adduced his rebuttal evidence and suit
was fixed for final hearing at that final stage of suit. The plaintiff
moved an application under order 6 rule 17 CPC on 19.02.1980 to
add that room with ravish in the suit property of plaint.
38. The Hon'ble Supreme Court, in case of Revajeetu Builders
and Developers Vs. Narayanaswamy and sons and Ors
[(2009)10 SCC 84, has elaborately discussed the factors to be
taken into consideration while dealing with the applications for
amendment. In Para No.63, six factors have been prescribed and
out of which two factors are that as a general rule, the court
should decline the amendment if a fresh suit on the amended
claims would be barred by limitation on the date of application and
the amendment, if allowed should not cause such prejudice to the
other side which cannot be compensated adequately in terms of
money. This proposition of law is well settled and can be multiplied
by other judgments of Hon'ble Supreme Court referring the case
of Ashutosh Chaturvedi Vs. Prno Devi @ Parani Devi and ors
[(2008)15 SCC 610], Vishwambhar and Ors. vs.
Laxminarayan (Dead) through LRs. And Anr. [(2001)6 SCC
163] and Radhika Devi Vs. Bajrangi Singh & Ors. [(1996)7
SCC 486].
(31 of 51) [CFA-104/1990]
39. Applying the aforestated proposition of law to the facts of
present case, on the date of filing the application on 19.02.1980,
the claim of plaintiff for pre-emption against the room sought to
be added in the plaint, has become undoubtedly time barred.
Further, before the proposed amendment, a valuable right has
accrued to defendants to raise an argument that the present suit
remains for the partial property, therefore by allowing the
amendment, such legal and valuable right accrued to defendants
stands infringed. The proposed amendment, otherwise also may
not be treated as bona fide as there is no explanation for filing the
application belatedly at the stage of final arguments, once the
corrigendum sale deed dated 09.09.1975 had been produced on
record on 18.03.1977. Firstly, the delay cannot be compensated to
the defendant by way of awarding cost and secondly, application
cannot be treated as bona fide, without explanation of delay and
has been filed with ulterior motive to frustrate the right of
defendants, accrued by virtue of proviso to Section 11 (1) of the
Act, 1966 due to lapse of limitation to claim right of pre-emption
by plaintiff in respect of room and ravish. The trial court, while
allowing the application under Order 6 Rule 17 CPC has not
considered the factors referred hereinabove and has committed
illegality and perversity in allowing the application for amendment.
Keeping in mind the parameters of law discussed hereinabove and
the factual matrix of present case, the application filed by the
plaintiff under Order 6 Rule 17 CPC is liable to be dismissed.
Accordingly, the order of trial court, allowing the application under
Order 6 rule 17 CPC while passing the impugned judgment dated
23.03.1990 is set aside and application is dismissed.
(32 of 51) [CFA-104/1990]
40. The effect of disallowing the amendment in plaint is that the
suit for pre-emption filed by the plaintiff without inclusion of the
room with ravish situated at first floor, remains for partial property
and stands violating to proviso of Section 11 (1) of Act of 1966, as
such cannot be decreed.
(b) Inclusion of three shops in suit and (c) Application under
Order 41 Rule 27 CPC.
41. Before dealing with the point (b) and (c) of (II), this Court
deems it just and proper to deal with the application filed by
respondents under Order 41 rule 27 CPC as the same also relates
to the similar kind of objection.
By way of application under Order 41 Rule 27 CPC,
respondents have produced certified copy of the judgment dated
14.09.1992 passed in the subsequent civil suit for pre-emption
bearing No.15/1980 filed by the plaintiff Damodar Lal in relation to
the portion situated in the same haveli sold out to Patasi Devi and
which has later on came in the ownership and possession of the
defendant No.1-Kewal Chand. By this judgment, the subsequent
suit of plaintiff has been dismissed and therefore, the defendant
No.1 has become a co-owner/co-sharer for the portion obtained
from the Patasi Devi and learned counsel for respondents submits
that having acquired a status of co-owner/co-sharer for another
portion in the haveli, the right of pre-emption claimed by the
plaintiff against the defendant No.1 has been lost. No reply to the
application has been filed by appellants. The judgment dated
14.09.1992 has been passed post to the impugned judgment in
the present appeal dated 23.03.1990. The judgment and decree is
(33 of 51) [CFA-104/1990]
certified copy issued from the court record and it's genuineness is
undoubted. This judgment and decree is an undisputed document
as the apellant-plaintiff himself has assailed this judgment in the
connected first appeal No.2/1993. Further the judgment and
decree is relevant and helpful to the court in deciding the present
first appeal, therefore, keeping in mind the proposition of law as
propounded by the Hon'ble Supreme Court in case of Wadi Vs.
Amilal [(2015)1 SCC 677], the application under Order 41 Rule
27 CPC is allowed and the certified copy of the judgment and
decree dated 14.09.1992 is taken on record to be considered in
the present appeal.
42. Learned counsel for defendant has applied the ratio of law, in
relation to wrong inclusion of three shops purchased under the
sale deed dated 07.01.1975, in the suit property of present plaint.
He pointed out that since right of pre-emption does not accrue
qua the three shops by virtue of Section 5 (a) of the Act of 1966,
therefore, excluding these shops, the suit for pre-emption is not
liable to be decreed as defendant No.1 being co-sharer in the
haveli by virtue of acquiring title/ownership of the three shops
situated therein, may defeat the plaintiff's right of pre-emption
for other properties. In counter, the counsel for plaintiff has placed
reliance on the judgment of Rajasthan High Court, delivered by
Single Bench in case of Kishan Chand Vs. Nand Kishore
[(1980) RLW 650] and plaintiff has also relied upon the
judgment in case of Maganbai and Jambu Kumar, LRs. Of
Magan Lal Vs. Nasir Mohammad [(1989)2 RLR 626].
43. A perusal of the whole judgment in case of Kishan Chand
(Supra) coupled with the proviso to Section 11 (1) of the Act of
(34 of 51) [CFA-104/1990]
1966, the legal possession stands clarified that the plaintiff could
have instituted civil suit for pre-emption in relation to the portion
of property under sale against which his right of pre-emption
accrued by excluding the three shops as the same is permissible
by virtue of the proviso to Section 11 (1) of the Act of 1966. This
Court, in case of Kishan Chand (Supra), while dealing with the
provisions of Section 5 (1) (a) vis-a-vis the proviso appended to
Section 11 (1) of the Act of 1966, observed that if under the sale
deed sought to be impeached, the immovable property transferred
includes the property against which right of pre-emption accrues
and the property against which right of pre-emption does not
accrue under Section 5 (1) (a), the pre-emptor has to confine his
suit only to the portion of such property relating to which his right
of pre-emption accrues to him under Section 6 of the Act. It has
been discussed that although, the act does not provide as to how
the consideration of the sale would be apportioned in between the
property pre-emptable and that portion of property which is not
pre-emptable but in such cases, it is the duty of court to make an
inquiry and find out as to what was the market value on the date
of sale of the property, which is not pre-emptable and of the
property, which is pre-emptable. The court placed reliance on the
judgment of Allahabad High Court, delivered in case of Mt.Zainab
Bibi Vs. Umar Hayat Khan And Ors. [AIR(1936) Allahabad
732].
44. Since in the present case, the plaintiff has neither excluded
the three shops from the suit property, to claim his right of pre-
emption only against the house property to which his right of pre-
emption accrues nor has made any pleadings or make out any
(35 of 51) [CFA-104/1990]
case to confine his suit in relation to the properties for which his
right of pre-emption accrues, therefore, the plaintiff cannot claim
benefit of the proviso appended to Section 11 (1) of the Act of
1966 at the stage of appeal.
45. Simultaneously on the hand, if the three shops are excluded
from the suit property, to which obviously the right of pre-emption
of plaintiff does not accrue, then the defendant No.1 becomes the
co-sharer of the haveli and acquires an equal status of co-owner
like plaintiff.
46. In case of Kewal Kishan vs. Jain Brotherhood and Ors.
[AIR (1939) Lahore 77], it was propounded that:-
"It is difficult to add anything else to the arguments
given by these Judges. It has always been admitted
that the vendee can defeat the rights of the pre-
emptor by acquiring other property which gave him
an equal right with the pre-emptor after his first
purchase but before the institution of the suit. This
was not disputed in the two Full Bench cases referred
to. It has now been settled that a purchase of
property after the institution of the suit, which has
the effect of giving the vendee an equal right of pre-
emption with the pre-emptor, is sufficient to defeat
the suit, this principle having been approved by their
Lordships of the Privy Council. Logically therefore
there can be no reason why a purchase, simultaneous
with the purchase of the house in dispute, should not
defeat the pre-emptor's title. As Robertson J.
remarked, it cannot be said that at the moment of the
purchase the pre-emptor had any right of pre-emption
over the property claimed, superior to that of the
vendee and, unless he can show that he had, the
burden lying upon him, the suit' must fail. Is it logical
to say that though' he can defeat X's claim (by buying
(36 of 51) [CFA-104/1990]
property prior or subsequent to the institution of the
suit) he cannot defeat it by buying such other
property simultaneously with the property in dispute?
In our view there is no distinction."
(emphasis supplied)
47. The ratio of law propounded in case of Kewal Kishan (supra)
has been followed by the Rajasthan High Court in case of Kishan
Chand Vs. Nand Kishore [(1980) RLW 650] and Maganbai
and Jambu Kumar, LRs. Of Magan Lal Vs. Nasir Mohammad
[(1989)2 RLR 626] can be referred wherein it is held that a
right of pre-emption is a weak right and it should subsist up to the
date of suit as well as on the date of passing the decree. Now the
legal proposition about the right of pre-emption stands settled
that the right of pre-emption not only should subsist on the date
of purchase and that on the date of institution of the suit but
should also subsist up to the date of decree. IF in between, the
vendee acquires another property and gains the similar status as
of the plaintiff, he can defeat the right of pre-emption of the
plaintiff. In support, judgment in case of Shankar Lal Vs.
Poonam Chand [(1954) RLW 292], Division Bench held as:-
"We are of opinion that the contention of learned
counsel for the appellant is correct. The law is well
settled that the pre-emptor must have subsisting
right of pre-emption on all of the three following
dates, namely (i) the date of sale, (ii) the date of
institution of the suit, and (iii) date of the decree. In
Ram Gopal vs. Piari Lal [(I.L.R. IV ALL. 441)], it
was held as far back as 1899 that the right to pre-
empt must exist not only on the date of sale, and the
date of the institution of the suit, but also on the date
of the decree. Reference in this case was made to an
earlier decision of the Full Bench of the Allahabad
(37 of 51) [CFA-104/1990]
High Court in Janki Prasad vs. Ishar Das
[(1899)A.W.N. 127] where that Court had already
held that the right must subsist on the date of sale as
well as on the date of the institution of the suit. In
Ramgopal's case (supra) that principle was extended
to the date of the decree also. The reason for this is,
in our opinion, quite clear. Pre-emption is a very weak
right, and therefore before a court deprives a vendee
of the property he has purchased, the pre-emptor
must show that he has the right up to the time the
decree is to be passed in his favour. If he loses that
right in any way before the decree is passed in his
favour his suit must be dismissed."
48. Section 15 of the Pre-emption Act, 1966 also stipulates that
the right of pre-emption, claimed by plaintiff must subsist at the
time of passing of the decree provided that a voluntary transfer in
favour of purchaser after the institution of suit for pre-emption,
shall not defeat the right of plaintiff, which was subsisted on the
date of suit. Section 19 of the Pre-emption Act, 1966 postulates
that no suit for pre-emption shall lie where prior to institution of
such suit, the transferee of the property in dispute has acquired
indefeasible interest or a right of pre-emption equal or superior to
that of plaintiff. Therefore, accordingly, the statutory provisions of
the Act of 1966 and as per the judicial pronouncement of the
various High Courts and the Supreme Court, the proposition of law
stands well settled that the plaintiff's preferential right must not
only exists at the time of sale but it should also be in existence at
the time of suit as well as at the date of decree.
49. If the present case is examined on the anvil of proposition of
law discussed hereinabove, it appears that the plaintiff's right of
(38 of 51) [CFA-104/1990]
pre-emption stands lost qua-defendant No.1 as on the date of
filing of the suit, the plaintiff gets the ownership in relation to the
three shops to which right of pre-emption does not arise and after
institution of suit, the plaintiff has acquired ownership and
possession on another portion in the haveli, which was obtained
from the Patasi Devi. Thus, defendants have become a co-sharer
in the haveli having equivalent right to the plaintiff as far as right
of pre-emption in relation to the suit property in the present suit is
concerned. In this view also, the plaintiff' suit for pre-emption is
not liable to be decreed at the time of deciding this first appeal.
50. Learned counsel for plaintiff has referred the judgment of
High Court delivered in case of Mohan Lal Vs. Rasula & Ors.
[AIR (1951) Raj. 117] to contend that it is necessary for the
plaintiff that he should have a subsisting right of pre-emption on
the date of the suit but in this judgment, there is no discussion
about the point that if post to date of suit, the vendee acquires
equivalent right to defeat the right of pre-emption of the plaintiff,
the same can also be considered at the time of passing the
decree. Section 15 was not considered in that judgment as Act of
1966 has come in operation in the year 1966. Thus, this judgment
does not speak contrary to the proposition of law as set out in
subsequent judgments that the right of pre-emption must subsist
up to the date of decree. Another judgment referred by learned
counsel for appellants in Prema (Dead) through LRs. Vs. Surat
Singh & Ors. [(2003)3 SCC 46] pertains to section 21-A of the
Punjab Pre-emption Act, 1913 and is not helpful to the present
case where the court is dealing the provisions of Rajasthan Pre-
emption Act, 1966. Therefore, the sub-points No. b and c of point
(39 of 51) [CFA-104/1990]
No.II stand decided against plaintiff and for the discussion made
hereinabove also, suit for pre-emption can not be decreed in
favour of plaintiff.
(III) Acquiescence/waiver of the right of pre-emption:-
51. Learned counsel for defendants pointed out that defendant
No.1 in his written statement, para No.20 has taken specific plea
that plaintiff, by his conduct has waived his right of pre-emption
and is estopped from enforcing this right by way of filing the
present suit. The counsel for defendants has submitted that if
from the conduct of plaintiff and from other material on record, it
stands established that the plaintiff acted inequitably and was not
prompt enough to invoke his right of pre-emption, his right can be
treated as lost or waived as the same is a weak right in this sense
also. Reliance has been placed on the judgment of Indira Bai Vs.
Nand Kishore [(1990)4 SCC 668] and Radhey Shyam Vs.
Vinod Kumar & Anr [(2007)5 Western Law Cases Rajasthan
771].
52. From the material on record, it transpires that the waiver of
the right of pre-emption of plaintiff may be assumed in the
following circumstances:-
(i) Plaintiff was aware about the sale of suit property,
prior to execution of the sale deed dated 07.01.1975.
Plaintiff's witness Gopal Singh (PW/5) corroborates this
facts that one person Chhoga Lal property dealer
proposed him to sell the suit property.
(ii) The defendant No.3-Smt. Nirmala Sharma, who
appeared as witness, also stated on oath that an oral
offer to purchase the suit property, was given to plaintiff
Damodar Lal but he declined to purchase against the sale
price offered by the defendant No.1.
(40 of 51) [CFA-104/1990]
(iii) Defendant No.1, purchaser, who appeared as DW/4
has also deposed his evidence in corroboration to the
evidence of defendant No.3. No cross-examination of this
part of evidence from these witnesses was made from the
side of plaintiff.
(iv) It is also reflected on record that the plaintiff was
not agreed to purchase the suit property against
consideration of Rs.24,999/-. The plaintiff (PW/1), has
disputed the valuation of suit property as Rs.24,999/-
and assessed his own value to the tune of Rs.12,999/-.
PW/2-Kunj Bihari, in his evidence states that he was
ready to purchase the suit property on reasonable price,
which is according to him near about Rs.13,000/- and not
Rs.24,999/-. All other evidences of plaintiff from PW/3 to
PW/6 were produced to show that the cost of suit
property was more than Rs.13,000/-. Per contra, the
vendor herself who appeared as witness has stated that
the suit property was sold against sale consideration of
Rs.24,999/- and she received this consideration from the
purchaser defendant No.1-Kewal Chand. The defendant
No.1 (DW/4) also corroborates this evidence. The trial
court has also concluded that the cost of suit property
was Rs.24,999/- and plaintiff has made valuation on
lower side.
(v) As per judgment of the Rajasthan High Court in
case of Radhey Shyam (Supra), it has been held that the
notice under Section 8 of the Act, 1963 is not required to
be in writing unless it is served through the civil court
under Sub-Section (2) of Section 8 of Act, 1966. It was
held that even an oral or constructive notice to the pre-
emptor can be established in view of circumstances of the
case. In case of Smt. Roopi Bai Vs. Mahaveer and
Ors. reported in [AIR(1994) Rajasthan 133], learned
Single Judge of High Court while relying upon the
judgment of Hon'ble Supreme Court in case of Bishan
Singh & Ors. Vs. Khazan Singh & Anr [AIR(1958)SC
838] observed that the right of pre-emption can be lost
(41 of 51) [CFA-104/1990]
by estoppels and acquiescence where the property is
alleged to have been offered to sell to plaintiff by vendor
before it was sold to defendant/purchaser and if looking
to the conduct of the plaintiff, the possibility of having
acquiescence with the sale cannot be ruled out, then that
would be sufficient to estopped the pre-emptor from
claiming right of pre-emption.
(vi) It has come on record that defendant No.1, after
purchasing the suit property through registered sale deed
dated 07.01.1975, carried out addition/alteration and
repairing work in the suit property and incurred huge
amount therein. The defendant No.1 in para No.20 of his
written statement has stated that he had incurred an
amount of Rs.8000/- in carrying out the addition and
alteration in the suit property after its purchase. The
plaintiff-Damodar Lal(PW/1) admits in his cross-
examination that defendant started repairing and
construction work after taking possession of the suit
property. Defendant No.1 (DW/4) categorically deposed
that after purchase of the house, he raised construction
and carried out repairing work therein. He deposed that
about Rs.8,000/- was incurred in such
construction/repairing work. Bills/vouchers of the
material, labour charges etc. were produced on record as
Exhibit-A/7 to Exhibit/A/23. These bills and vouchers are
all period from November, December, 1974 and January,
February, 1975 etc. It has already been found that the
defendant No.1 has got physical possession of the suit
property by or before 07.01.1975 and the plaintiff has
also come to know about this fact on 07.01.1975.
(vii) The plaintiff issued first notice dated 20.05.1975
(Exhibit-2) invoking his right of pre-emption.
(viii) By all such evidence on record, it can be inferred
that the plaintiff was not willing to purchase the suit
property before the execution of the sale deed dated
07.01.1975 against price of Rs.24,999/- and further he
kept silence for a long period during the course of
(42 of 51) [CFA-104/1990]
carrying out the construction/repairing work by the
defendant No.1 in the suit property. Thus, virtually
waived his right of pre-emption, further his conduct
estopped him to invoke the right of pre-emption.
(ix) The Hon'ble Supreme Court, in case of Indira Bai
(Supra) has observed that courts in India are primarily
the courts of equity, justice and good conscience,
therefore cannot permit to invoke a right of pre-emption
by pre-emptor, which is otherwise a weak and inequitable
right, to defeat the right of purchaser over the suit
property.
(x) Considering the overall facts and circumstances
discussed hereinabove, this Court is of opinion that
plaintiff's suit for pre-emption is hit by the principle of
acquiescence estoppel and waiver and as such his suit is
not liable to be decreed on this ground also.
53. The consequence of discussion is that all three points have
been decided against the appellant-plaintiff and neither the
plaintiff's suit is found well within limitation nor his right of pre-
emption is liable to be succeed being invoked in relation to partial
property as well as not enforceable at least against the defendant
No.1, the purchaser, who has also become co-sharer having
equivalent right and status vis-a-vis to the plaintiff on account of
having ownership of three shops on the date of the suit and later
on acquiring ownership & possession of another portion in haveli
sold out to Smt. Patasi Devi during course of suit and further the
plaintiff by his conduct has waived his right of pre-emption.
Therefore, the suit for pre-emption filed by the plaintiff is not
liable to be decreed and no interference is called for in the
impugned decree dated 23.03.1990 passed by the trial court
dismissing the plaintiff's suit for pre-emption.
(43 of 51) [CFA-104/1990]
S.B. Civil First Appeal No. 2/1993:-
54. In this appeal, the counsel for plaintiff would argue that the
plaintiff has a right of pre-emption for the portion of haveli sold by
the defendant Nos.2 and 3 to defendant No.4-Patasi Devi vide sale
deed dated 09.09.1975. He submitted that although the defendant
No.1 instituted a civil suit for pre-emption against the defendant
No.4 and obtained a decree of pre-emption on the basis of
compromise on 22.01.1977 and pursuant to the compromise
decree obtained ownership and possession of that property dated
on 09.03.1977 but the issuance of decree for pre-emption in
favour of defendant No.1 and transfer of ownership and
possession to defendant No.1, does not defeat the right of plaintiff
for pre-emption in relation to the portion of Patasi Devi. He
submitted that from the date of knowledge i.e. 12.03.1977, the
present suit instituted on 02.02.1978 be treated within limitation
by applying Section 18 of the Limitation Act. Reliance has been
placed upon the judgment of Jagdish Rai and Anr. Vs. Suraj
Kumar Singh [AIR(1939) Allahabad 311] and Mst. Phula
Wanti & ors. Vs. Kashmiri La [AIR (1956) Pepsu 17].
55. Per contra, learned counsel for defendant No.1 would submit
that the defendant No.1 after purchase of the properties in haveli
vide sale deed dated 07.01.1975 acquired the status of co-owner
and as such he institute a civil suit for pre-emption against Patasi
Devi in relation to portion of haveli sold to her through sale deed
dated 09.09.1975. This suit for pre-emption was rightly decreed
and thereafter the defendant No.1 has acquired ownership and
possession of the portion of Patasi Devi w.e.f. 07.03.1977. The
(44 of 51) [CFA-104/1990]
decree for pre-emption dated 22.01.1977 passed in favour of
defendant No.1 does not suffer from fraud or collusion and at the
time when the plaintiff instituted the present civil suit on
02.02.1978, plaintiff does not have any pre-emption right at least
qua defendant No.1 who was also one of co-sharer by virtue of
purchasing the portion of haveli through his sale deed dated
07.01.1975 as much as a decree for pre-emption dated
22.01.1977 has already been passed in his favour in relation to
the portion of Patasi Devi, subject matter of present civil suit.
Learned counsel for defendant would further submit that the
present suit for pre-emption, filed on 02.02.1978, claiming a right
of pre-emption on the basis of sale deed dated 09.09.1975
(registered on 10.09.1975) is clearly barred by limitation of one
year as provided under Article 97 of the Limitation Act, 1963.
56. As per rival contentions of learned counsel for both parties
and the challenge made to the impugned judgment and decree
dated 14.09.1992 following points emerged for determination by
this Court:-
I) Whether plaintiff's suit for pre-emption bearing
No.15/1980 is within limitation?
II) Whether plaintiff's right of pre-emption is
enforceable qua defendant No.1 who was one of co-
sharer on the date of sale i.e. 09.09.1975 and in
whose favour a decree of pre-emption has already
been passed on 22.01.1977 before institution of
present suit on 02.02.1978?
(I) LIMITATION:-
57. The factual matrix is not in dispute that the present suit for
pre-emption has been instituted on 02.02.1978, in relation to the
(45 of 51) [CFA-104/1990]
said property sold by defendant No.2 and 3 venders Chhoti Devi
and Nirmla Devi to defendant No.4 purchaser-Patasi Devi vide
registered sale deed dated 09.09.1975 registered on 10.09.1975
(Exhibit-A/2). It is apparent that the suit has been instituted after
expiry of one year, a period of statutory limitation as provided
under Section 21 of the Act of 1966 and Article 97 of the
Limitation Act, 1963. The plaintiff has tried to carry the limitation
w.e.f. 12.03.1977, the alleged date from which the plaintiff claims
to know about the sale deed dated 09.09.1975 and the decree for
pre-emption passed in favour of defendant No.1 dated 22.01.1977
and has made an attempt to persuade the court that his suit
instituted on 02.02.1978 falls within limitation. This Court is not
agreeable with the contention of learned counsel for plaintiff and
the present suit cannot be treated to be filed within limitation for
multiple reasons.
58. Firstly, as per the evidence, the original plaintiff-Damodar Lal
(PW/1) and the substituted legal representatives of plaintiff-Kunj
Behari (PW/7), it has revealed on record that purchaser Smt.
Patasi Devi came in possession of the suit property and carried out
repairing as well as construction work in the suit property after
purchase of the same through sale deed dated 09.09.1975. The
evidence adduced from the side of plaintiff that the construction
and repairing work in the suit property was carried out by the
owner of the suit property has been countered by DW/4-Satya
Narain who happens to be husband owner/vendor Smt. Nirmala
Devi. DW/4 has deposed that after purchase of the suit property
by Patasi Devi, she broke the partition wall to convert the small
rooms in a big hall, changed the entire floor, made renovations in
(46 of 51) [CFA-104/1990]
walls, plaster and got constructed one new latrine at third floor.
The trial court is right to conclude that statements of plaintiff and
other witnesses stand belied by the evidence of DW/4 and it was
found proved that vendors have transferred the physical
possession of suit property to Patasi Devi with the sale of suit
property through sale deed dated 09.09.1975.
59. The issue of limitation has already been discussed in forging
paragraphs of this judgment that in case of sale of immovable
property through registered instrument, by virtue of Article 97 of
the Limitation Act, limitation for the suit pre-emption starts from
the transfer of physical possession of the property under sale and
if subject matter of sale does not admit of physical possession,
then from the date when the instrument of sale is registered. The
statutory period of limitation is one year, therefore, the limitation
for present suit starts from 09.09.1975 and the suit instituted on
02.02.1978 is not within limitation. Terminus a quo for start of
limitation is transfer of physical possession of the immovable
property even in case of a registered sale deed, if property under
the sale has exchanged hands by way of transfer of physical
possession wholly or partly.
60. Secondly, the claim of plaintiff is that limitation be counted
from the date of knowledge i.e. 12.03.1977 cannot be
countenanced and is not liable to be accepted. The plaintiff himself
is one of co-sharer and was residing in the haveli in question and
when the portion of haveli has been sold by other co-
owners/vendors to Patasi Devi and she came in physical
possession through sale deed dated 09.09.1975, as also
construction and repairing work was also started in the suit
(47 of 51) [CFA-104/1990]
property thereafter, the plaintiff could have easily come to know
about the sale of subjection portion in the present suit in favour of
Smt. Patasi Devi, if he had been vigilant and exercised due
diligence.
61. On the date of execution of sale deed dated 09.09.1975,
defendant No.1 who had already purchased another portion of
haveli through sale deed dated 07.01.1975 was a co-sharer and
therefore, the defendant No.1 instituted his civil suit for pre-
emption against the purchaser Patasi Devi, which was decreed by
way of a compromise vide judgment and decree dated
22.01.1977. The defendant No.1 after making sale consideration
and other expenses etc. to the tune of Rs.34,999/- (receipt is
Exhibit-A/4) acquired ownership and possession of suit property
from Patasi Devi on 07.03.1977. The decree of pre-emption
passed in favour of defendant No.1 though on the basis of
compromise, cannot be treated to be collusive and by fraud
merely due to non-impleadment of the plaintiff. The decree for
pre-emption passed in favour of defendant No.1 is based on his
own right of pre-emption, which obviously was vested with him at
the time of sale deed dated 09.09.1975. Mere fact that the
defendant No.1 is in relationship of the purchaser Patasi Devi is
not suffice to assume the compromise decree of pre-emption as
collusive or suffer from fraud, more particularly, in the backdrop of
factual matrix where it has come on record that Patasi Devi
purchased the suit property through registered sale deed dated
09.09.1975 paid sale consideration of Rs. 24,999/- and thereafter
carried out construction and repairing work and her ownership and
(48 of 51) [CFA-104/1990]
possession was substituted to defendant No.1 after payment of an
amount of Rs.34,999/-.
62. The facts of present case do not permit the plaintiff to take
resort of Section 18 of the Limitation Act, rather facts clearly
attract the provisions of Article 97 of the Limitation Act.
Judgments of Allahabad High Court, in case of Jagdish Rai (Supra)
and Pepsu High Court, in case of Mst. Phula Wanti (Supra) relied
upon by learned counsel for plaintiff do not render any support, in
the facts of present case, to count the limitation from the date of
knowledge and not from the date of delivering of physical
possession of the subject property under sale or from the date of
registration of sale deed.
63. The trial court is right in his approach that if the plaintiff had
been acted due diligently and remained vigilant, he could have
come to know about the sale deed dated 09.09.1975 executed in
relation to the suit property, in favour of Patasi Devi. This Court
does not find any infirmity and perversity in findings of the trial
court passed while deciding the issue No.3 to the effect that the
decree of pre-emption passed in favour of defendant No.1 does
not suffer from any fraud. Therefore, this Court affirms fact
findings of the trial court in relation to issue No.4, holding that the
plaintiff's suit is not within limitation.
II) ENFORCEABILITY OF PLAINTIFF'S RIGHT OF PRE-
EMPTION QUA DEFENDANT NO.1:-
64. In this regard issue No.6 was framed by the trial court and
while deciding this issue, the trial court has held that in relation to
the suit property purchased by Patasi Devi, the plaintiff and
defendant No.1 both have equal right of pre-emption.
(49 of 51) [CFA-104/1990]
65. According to the facts of present case, the defendant No.1
had purchased the portion of haveli from vendors Chhoti Devi and
Nirmala Devi through registered sale deed dated 07.01.1975 and
has become co-sharer of the haveli, therefore, on the date of sale
deed dated 09.09.1975, when vendors Chhoti Devi and Nirmala
Devi sold another portion of haveli, to purchaser Patasi Devi, the
defendant No.1 was also one of the co-sharer vis-a-vis the plaintiff
who is another co-sharer. It is true that the plaintiffs suit for pre-
emption in relation to the portion purchased by the defendant
No.1 through sale deed dated 07.01.1975 was pending at that
point of time. Nevertheless, at the time of passing the impugned
judgment dated 14.09.1992, the previous suit of plaintiff has
already been dismissed on merits vide judgment dated
23.03.1990. As per section 15 of the Act of 1966, the right of pre-
emption must subsist at the time of passing the decree. The
proviso appended to Section 15 of the Act of 1966 does not apply
to the facts of present case. As even, on the date of sale of suit
property to Patasi Devi dated 09.09.1975, the defendant No.1 had
already acquired co-ownership in the haveli vis-a-vis to the
plaintiff. In case of Thakur Madho Singh & Ors. Vs. James R.R.
Skinner & Ors. [AIR(1941) Lahore 433] has observed as
under :-
"It is well settled that plaintiff's preferential right must
not only exist at the time of the sale but it should also
be in existence at the time of the suit as well as at the
date of decree"
The judgment has been followed by Division Bench of
Rajasthan High Court in case of Shankar Lal Vs. Poonam Chand
(50 of 51) [CFA-104/1990]
[(1954) RLW 292]. Thus, at least on the date of deciding the
present suit on 14.09.1992, the plaintiff's right of pre-emption in
relation to the portion of Patasi Devi did not subsist.
66. The issue can be analyzed from another aspect also. When
the defendant No.1 was also one of the co-sharer in the haveli
w.e.f. 07.01.1975 and possessed his right of pre-emption in
respect of the portion sold to Patasi Devi through sale deed dated
09.09.1975, defendant No.1 instituted suit for pre-emption
against Patasi Devi and in this suit, a decree for pre-emption was
passed in his favour on 22.01.1977. Patasi Devi purchased the suit
property against sale consideration of Rs.25,000/-, which has
been proved in evidence and has also been acknowledged by
vendors as also by purchaser Patasi Devi. A challenge to this
valuation by the plaintiff that the actual value was Rs.11,000/-
only and not Rs.24,999/- has not been proved and the issue No.1
has already been decided by the trial court against the plaintiff.
Findings of issue No.1 are not under challenge nor have been
disputed by learned counsel for plaintiff in the first appeal. The
defendant No.1 has proved that pursuant to the decree for pre-
emption dated 22.01.1977 passed in his favour, he paid
Rs.34,999/- including the sale consideration and other expenses
to Patasi Devi, for obtaining the ownership and possession of her
portion and Exhibit-A/4 (receipt) is available on record. It has also
been discussed and has been held in catena of judgments that a
right of pre-emption is a weak right, which can be defeated by all
legal means available to the vendee and defendant. In the present
case, the defendant No.1 by procuring the decree of pre-emption
in relation to the portion of Patasi Devi, which is subject matter in
(51 of 51) [CFA-104/1990]
the present suit, has defeated the plaintiff's right of pre-emption
even before filing the present suit on 02.02.1978.
67. In this view, Section 19 of Pre-emption Act, 1966 prohibits
the plaintiff's suit for pre-emption against defendant No.1. Division
Bench of Allahabad High Court, in the case of Abdul Razzaq Vs.
Mumtaz Hussain and Ors. [25 All. 334 Indian High Courts
Reports] has held that no suit for pre-emption lie, the basis of
which, a decree for pre-emption in another suit. The decree for
pre-emption passed in favour of defendant No.1 dated 22.01.1977
is a lawful and valid decree. As has already been observed by the
trial court and discussed by this Court in forgoing paragraphs that
this decree of pre-emption dated 22.01.1977 does not suffer from
fraud or collusion, therefore, in this way also, the plaintiff's right of
pre-emption is not enforceable against the defendant No.1.
68. Issue No.2, 3, 4 and 6 stand answered against the plaintiff
as per discussion made hereinabove. Issue No.1 and 5 have
already been held by the trial court against the plaintiff and
findings of these issues are not under challenge in the present first
appeals, therefore, as a final result, this court affirms the
judgment and decree dated 14.09.1992, dismissing the plaintiff's
suit for pre-emption.
69. The upshot of the discussion is that both first appeals have
failed and are hereby dismissed. No costs.
70. Any other pending application(s), if any, stand(s) disposed
of.
(SUDESH BANSAL),J
TN
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