N.K.KAPOOR, J. - (1.) THIS is plaintiffs regular second appeal against the judgment and decree of the Additional District Judge whereby the judgment decree of the trial Court was reversed.
(2.) BRIEFLY put, Ram Sarup, now represented by his legal representatives, namely, the present appellants filed a suit for possession by way of pre-emption claiming superior right of pre-emption being a tenant at will in respect of the registered sale deed dated 1. 8. 1983. Pursuance to the notice issued by the Court, defendants put in appearance and filed written statement controverting the various material averments made in the plaint. Navneet Kumar filed separate written statement pleading that he being grandson of one of the vendors, namely, Babu Lal had pre-empted the sale in question and obtained a decree for possession by way of pre-emption on 27. 10. 1983, this way the suit of the plaintiff is not maintainable and so is liable to be dismissed. Even otherwise, the suit land falls within the limits of Municipal Committee, Narnaul, and as such the plaintiff has no cause of action to file the present suit. On the pleadings of the parties, issues with regard to superior right of pre-emption, limitation, sale consideration and with regard as to whether the land falls within the municipal limits of Narnaul were framed. All. these issues need not be noticed in detail as the point in controversy to be resolved falls under issues No. 1, 7-A and 7-B which are reproduced hereunder:1/ Whether the Plaintiff is tenant and as such has preferential right to pre-empt the sale? OPP. 7-A/ Whether the plaintiff has a superior right of pre-emption as rival pre-emptor as alleged? OPP. 7-B/ Whether the impugned decree and judgment dated 27. 10. 1983 are liable to be set aside and is not binding upon them as alleged ? OPP.
(3.) THE trial Court on the basis of evidence led by the parties came to be conclusion that Ram Sarup (now deceased) was tenant on the suit land and thus has a superior right of pre-emption. It further held that since tenancy is heritable, the present appellants-legal representatives of Ram Sarup have a right to prosecute the pending suit as well as grant of relief in view of the decision of the apex Court in case reported as Kanti Rani and Anr. v. Rama Rani, 1988 PLJ 254. Under issues No. 7-A and 7-B the trial Court came to the conclusion that the so-called decree procured by Navneet Kumar carries no weight as Navneet Kumar failed to establish on record the superior right of pre-emption qua Niranjan vendor. Even with regard to Navneet Kumar's claim qua share of Babu Lal the Court came to the conclusion that there is neither any proof, on record that any 'zare Panjam' was deposited by him nor with regard to payment of sale consideration and costs of stamp and registration. It was a collusive decree and having been passed during the pendency of the present suit does not in any manner adversely affect the rights of the plaintiffs. Resultantly the suit of the plaintiffs was decreed subject to their depositing the sale consideration alongwith stamps and registration charges before the stipulated date i. e. on or before 11. 6. 1989. 4. On appeal, the lower appellate Court reversed the material findings under issues No, 7-A and 7-B noticed above primarily relying upon the judgment and decree Exhibit P-3 and P-4. According to the lower appellate Court, Navneet Kumar being grandson of Babu Lal had a superior right of pre-emption and the decree dated 27. 10. 1983 Exhibit P-3 having been passed before the impugned judgment and decree of the trial Court disentitles the Plaintiffs to claim possession on the basis of their superior right of preemption. The objection taken by the respondents (Plaintiffs) with regard to non impleading of them being rival pre-emptors despite having been accepted was brushed aside.;