M.M. Kumar, J. - (1.) This is plaintiffs second appeal directed against the judgment and decree passed by the Additional District Judge, Ourgaon on 4.2.1980. The learned Addl. District Judge partially modified the judgment and decree dated 30.11.1978 passed by the learned Senior Sub Judge, Gurgaon.
(2.) The case set up by the plaintiff -appellants (for brevity 'the plaintiffs') before the trial Court is that they were owners of l/4th share of agricultural land measuring 88 bighas 8 biswas bearing Khewat No. 92 Khatauni numbers 201 to 210 situated in the revenue estate of village Sakatpur, Tehsil and District Gurgaon. The afore -mentioned land at one stage was shown to be evacuee property and the plaintiffs were restored the aforementioned land in pursuance to an order passed on 11.7.1950 by the Deputy Custodian, Gurgaon under Sec. 16 of the Administration of Evacuee Property Act, 1950 and the revenue Patwari was directed to make necessary corrections in the revenue record. It was claimed that they continue to be owners of the afore -mentioned land. It was further asserted that during consolidation the land bearing Khewat No. 281 Khata No. 320 Rect. No. 39 Killa No. 19/2 (1 -5), 21/1 (4 -0), Reel. No. 44 killa No. 2/1 (3 -12), Rect. No. 49 Killa No. 25/4 (1 -10) total 10 Kanals 7 Marias was allotted in lieu of the land comprised in Khatauni Nos.201 to 210. A challenge has been made to the revenue record where defendant -respondent No. 5 (for brevity 'the defendant') has been wrongly shown to be owner of the land despite the restoration order and it is claimed that the afore -mentioned defendant No. 5 has no title to the land. It is, therefore, claimed that the plaintiffs are owners and in possession of the above land and are entitled to remain in possession as its owner.
(3.) On the basis of the allegations that in consolidation proceedings they were allotted substituted land as referred to herein above and hence they are entitled to be the owner and continue in possession of the aforementioned land, it is asserted by the plaintiffs that defendant No. 1 has, without any right, sold the aforementioned substituted land to defendant Nos.2 to 5 by way of registered sale deed dated 27.2.1969 for an ostensible consideration of Rs.3,500/ -. In the alternative, the plaintiffs claimed right of pre -emption on the basis that they were tenants of the vendor Smt. Bhagwan Devi, defendant No. 5. Defendant Nos.l to 5 contested the suit and filed their written statement. Various preliminary objections were taken like that l/5th of the sale price of the property was not deposited and the suit for pre -emption cannot proceed in the absence of the requisite deposit of l/5th sale price which is a condition precedent. On merits, it was claimed that there was no order ever passed restoring the land by the Deputy Custodian to the plaintiffs nor any land was allotted to them by the consolidation authorities substituting the old land. On the basis of these assertions, the defendants claimed that suit of the plaintiffs was liable to be dismissed.;