- (1.) The question of law raised in this appeal is "as to Whether suit filed by the plaintiffs/appellants for possession by way of preemption on being fathers' brothers' sons of the vendors and co-sharers in the land in dispute, dismissed in view of the judgment of the Supreme Court in the case of "Jagdish and others Vs. Nathi Mal Kejriwal and others", 1987 AIR(SC) 68, deserves to be decreed in view of judgment of the Supreme Court in the case of "Bhikha Ram Vs. Ram Sarup and others", 1992 AIR(SC) 207. The plaintiffs filed suit for possession by way of pre-emption of the sale deed dated 30.4.1984 executed by Dalip Singh son of Sardara Singh of the undivided interest in the land in dispute, in favour of the defendants for a consideration of Rs. 1,36,000/- exercising his superior right being the father's brother's son of the vendor and a co-sharer.
(2.) In the written statement, the defendants denied the superior rights of the plaintiffs and after the replication was filed, issues were framed on 4.9.1985, which reads as under: - "1. Whether plaintiff has a superior right of pre-emption qua the suit as alleged? OPP 2. Whether sale price was fixed in good faith and actually paid to the vendor, as alleged? OPP 3. If issue No.2 is not proved, what is the market value of the suit land? OP Parties. 4. Whether the suit is bad for non-joinder of necessary parties? OPD 5. Whether the plaintiff has not deposited the 1/5th pre-emption amount in time? OPD 6. Whether the suit is bad for partial pre-emption? OPD 7. Whether plaintiff has waived his right of pre-emption as alleged? OPD 8. Whether vendees-defendants are entitled for the stamp and registration expenses, as alleged, if so to what amount? OPD. 9. Relief."
(3.) The trial Court recorded in issue No.1 that the defendants have conceded that the plaintiffs have the superior right. Ultimately, vide its judgment and decree dated 19.1.1987, the suit of the plaintiffs was decreed subject to deposit of Rs. 1,53,530/- less 1/5th pre-emption money (Rs. 27000/- deposited on 30th May, 1985) on or before 19.3.1987.;