LAWS(RAJ)-2013-3-22

ADARSH DEVI Vs. SURESH CHAND

Decided On March 08, 2013
Adarsh Devi Appellant
V/S
SURESH CHAND Respondents

JUDGEMENT

(1.) This Special Appeal filed by the appellant Smt. Adarsh Devi, is directed against the concurrent judgment & decree of two courts below dismissing her suit claiming pre-emptory right in view of statutory provisions contained in Section 6(1) of the Rajasthan Pre-Emption Act, 1966 (herein-after to be referred to as 'the Act of 1966'), against the respondents in respect of suit property comprising of the Eastern portion of a residential building situated at 9 Hospital Road, Jaipur.

(2.) Briefly stated, the facts of the case, in so far as they are relevant for the disposal of the present appeal, are as follows:-

(3.) The appellant and respondent no.5 are real sisters and they both have inherited a definite specified portion in the suit property (described as Eastern portion and the Western portion shown in the map annexed with the gift deeds) by virtue of two separate gift deeds, executed in their favour by their late father Pt. Shyam Lal ji, more than 50 years ago. The gift deed in favour of the appellant Smt. Adarsh Devi was executed and got registered on 2.7.1957 whereas the gift deed in favour of respondent no.5 was executed and registered on 8.1.1959. The total land area of the suit property was 2667 sq.yds (120x200 feet) situated in 9, Hospital Road, Jaipur. Pt. Shyam Lal ji, being the late father of appellant and respondent no.5 died on 8.2.1967 and more than 7 years after his demise, respondent no.5 entered into an agreement with respondent nos.1 to 4 on 20.2.1974 and agreed to sell Eastern portion of the suit property, which she got in gift from her late father to them for a consideration of Rs.2,31,000/- and received part sale considerations from them on 20.2.1974 and 29.6.1974. It seems that there was some dispute between respondent no.5 on the one hand and respondent nos.1 to 4 on the other, with regard to the sale consideration. The respondent nos.1 to 4 filed a suit for specific performance against respondent no.5 in August 1974 and that suit was decreed by the court on the basis of compromise between the parties in that suit vide decree dated 18.10.1976. Pursuant to the said compromise decree in suit for specific performance, respondent no.5 had executed sale deed of the Eastern portion of the suit property in favour of respondent nos.1 to 4 on 16.11.1976. Shortly thereafter the appellant being the real sister of respondent no.5, had filed a suit for pre-emption against the respondents on 8.3.1977 and alleged in the said suit that she was entitled to enforce her pre-emptory right in respect of the Eastern portion of the suit building sold by respondent no.5 to respondent nos.1 to 4, as according to her, Lawn Porch Varandah and backyard of the suit building, gifted by the late father of the parties, were jointly held by her and respondent no.5. The appellant being the plaintiff in the suit, claimed pre-emptory right in view of the provisions contained in 6(1) of the Act of 1966. Respondent no.5, who is the real sister of appellant and had sold the Eastern portion to respondent nos.1 to 4, did not contest the suit despite notice and was proceeded against ex parte in the trial court. Respondent nos.1 to 4 being the purchasers of the Eastern portion, had filed their written statement denying the right of pre-emption and pleaded, inter alia, that in course of time after the gifts were made, the appellant and respondent no.5 had divided the common Lawn, Porch, Varandah etc., by metes and bounds by erecting a common partition wall. It was stated that there was a complete separation of the Eastern and Western portions and for that reason the appellant had no claim for pre-emption. Respondent nos.1 to 4 had further pleaded in their written statement that they had purchased the Eastern portion (gifted to respondent no.5 by her late father) for manufacturing purposes and was being used by them for that purpose only and, therefore, according to them, no right of pre-emption could otherwise accrue to the appellant under Section 5(1)(iv) of the Act of 1966. It was further pleaded that the appellant as also her husband Dr. Mool Chand, in fact, took active part in negotiations for sale of the Eastern portion by respondent no.5 to respondent nos.1 to 4. According to respondent nos.1 to 4, in fact, the appellant wanted to sell her Western portion to respondent nos.1 to 4 and as the deal for sale of her portion could not materialise with respondent nos.1 to 4 the appellant filed pre-emption suit against them. Respondent nos.1 to 4 had prayed for the dismissal of this suit for pre-emption filed by appellant against them.