SANJAY KISHAN KAUL, J. - (1.) The singular question this Court had framed for consideration in this appeal was whether the limitation shall commence from the first sale deed after coming into force of the Rajasthan Pre-Emption Act, 1966 or from any other subsequent sale on the basis of Article 97 of the Limitation Act, 1963. This question arises in this proceeding in a situation where the original plaintiff sought to enforce such right after three sale transactions had taken place in the past involving the subject immovable property in the years 1945, 1946 and 1966. The last transaction was effected on 5th November that year, after the 1966 Act had become operational. The factum of the plaintiff's entitlement otherwise claim right of pre-emption in terms of Section 6 of the 1966 Act is not in dispute in this proceeding. In the suit out of which this appeal arises, the plaintiff's suit for pre-emption over a transaction effected on 21st January 1974 was resisted on the ground of being barred by limitation.
(2.) In order to determine the aforesaid question of law framed by this Court in terms of the order dated 05.01.2016, it is necessary to discuss the nature of the right of pre-emption. In this behalf, we had discussed the right of pre-emption in a recent judgment in Barasat Eye Hospital and Ors. vs. Kaustabh Mondal, (2019) SCC Online SC 1351. The said judgment, authored by one of us (Sanjay Kishan Kaul, J.), in its initial paragraph itself discusses this aspect and it would suffice to quote the same. "1. The right of pre-emption holds its origination to the advent of the Mohammedan rule, based on customs which came to be accepted in various courts largely located in the north of India. This law is stated to be largely absent in the south of India on account of the fact that it never formed a part of Hindu law in respect of property. However, this law came to be incorporated in various statutes, both, prior to the Constitution of India (for short 'the Constitution') coming into force, and even post that., Bhau Ram vs. Baij Nath Singh, AIR 1962 SC 1476. The constitutional validity of such laws of pre-emption came to be debated before the Constitution Bench of this Court, in Bhau Ram,[1]. There are different views expressed by the members of the Constitution Bench of five Judges, and also dependent on the various State legislations in this regard. Even though there were views expressed that this right of pre-emption is opposed to the principles of justice, equity and good conscience, it was felt that the reasonableness of these statutes has to be appreciated in the context of a society where there were certain privileged classes holding land and, thus, there may have been utility in allowing persons to prevent a stranger from acquiring property in an area which has been populated by a particular fraternity or class of people. This aspect was sought to be balanced with the constitutional scheme, prohibiting discrimination against citizens on the grounds of only religion, race, caste, sex, place of birth or any of them, under Article 15 of the Constitution, and the guarantees given to every citizen to acquire, hold and dispose of property, subject only to the test of reasonable restriction and the interest of general public." [1] supra The judicial approach adopted towards this right of pre-emption was thereafter discussed in the said judgment in the following terms: "10. In order to appreciate the aforesaid provisions relating to the right of pre-emption, it would be appropriate to refer to an extremely lucid judgment of this Court by Justice K. Subbarao (as he then was), setting forth the contours of the right of pre-emption in Bishan Singh vs. Khazan Singh, AIR 1958 SC 838 in a four Judge Bench judgement. The Bench proceeded to discuss the view of different Courts on this right of preemption, as found in the following: a. Plowden, J. in Dhani Nath vs. Budhu, 136 P.R. 1894 b. Mahmood, J. in Gobind Dayal vs. Inayatullah, (1885) ILR7 All 775, 809. c. Mool Chand vs. Ganga Jal, (1930) ILR 11 Lahore (F.B.) 258, 273. 11. In view of the aforesaid elucidation, it was opined that the preemptor has two rights: first, the inherent or primary right, i.e., right for the offer of a thing about to be sold; and second, the secondary or remedial right to follow the thing sold. The secondary right of preemption is simply a right of substitution, in place of an original vendee and the pre-emptor is bound to show not only that his right is as good as that of that vendee, but that it is superior to that of the vendee. Such superior right has to subsist at the time when the pre-emptor exercises his right. The position is thereafter summarized in the following terms: "11......(1) The right of pre-emption is not a right to the thing sold but a right to the offer of a thing about to be sold. This right is called the primary or inherent right. (2) The pre-emptor has a secondary right or a remedial right to follow the thing sold. (3) It is a right of substitution but not of re-purchase i. e., the pre-emptor takes the entire bargain and steps into the shoes of the original vendee. (4) It is a right to acquire the whole of the property sold and not a share of the property sold. (5) Preference being the essence of the right, the plaintiff must have a superior right to that of the vendee or the person substituted in his place. (6) The right being a very weak right, it can be defeated by all legitimate methods, such as the vendee allowing the claimant of a superior or equal right being substituted in his place." On having set down the contours of the aforesaid right, we turn to the facts of the present case. Facts:
(3.) The Rajasthan Pre-Emption Act, 1966 (hereinafter referred to as 'the Act') was brought into force on 1.2.1966. In view of the rights conferred under the Act, a suit was filed by the predecessor-in-interest of respondent No.1 seeking a decree of pre-emption against the predecessor-in-interest of the appellant herein and respondent Nos. 4 to 6 herein, on 10.1.1974, which was numbered as Civil Suit No. 40/1975. The property in question is situated in a building bearing AMC No. XV/290 situated in Kayasth Mohalla, Ajmer ('suit schedule property') and is predicated on account of having a common portion in the said property. The plaint stated that respondents 5 and 6 herein (original defendants 3 and 4) were owners and in possession of the part of the property which was sold to respondent No. 4 herein (the original defendant No. 2), vide sale deed dated 10.01.1974 fora consideration of Rs. 4000/-. respondent No. 4 further sold this property to the appellant herein (original defendant No.1 being the predecessor-in-interest) on 21.01.1974 once again for the same consideration. The other facts stated in the plaint are not required to be gone into nor pleaded, except that there is an allegation that the two portions were part and parcel of the same house having main entrance, lavatory and staircase in common and that no notice, as provided for under Section 8 of the Act, had been served, which mandates a notice to pre-emptors (forming part of the procedure as set out in Chapter III of the Act). The suit was resisted. The sale of the property as per the two sale deeds was not disputed. The plea was, however, raised that there were two separate lockable premises and as such no right of pre-emption accrued in favour of the original plaintiff. Once again, it is not necessary to go into other defences for adjudication of the present matter. It may, however, be noted that the written statement stated that yet another sale agreement was entered into on 25.10.1974 and the purchaser had not been made a party to the suit.;