NIRMAL YADAV,J - (1.) THIS is defendant's second appeal against the judgment and decree dated 15.6.1982 passed by learned Sub Judgment Ist Class, Faridabad vide which suit filed by the respondent/plaintiff for possession by way of pre-emption was decreed, and also against the judgment and decree dated 11.3.1983 passed by learned District Judge, Faridabad, whereby the decree granted by the trial Court has been affirmed.
(2.) EARLIER , this Court vide order dated 4.8.2004 accepted the appeal and set aside the impugned judgments and decrees in view of the decision rendered by the Apex Court in Atam Parkash v. State of Haryana and others, 1987 RRR 116 : AIR 1986 SC 859. The respondent/plaintiff challenged the order passed by this Court before the Hon'ble Supreme Court in Civil Appeal No. 301 of 2007 arising out of SLP No. 25897/25898 of 2004. The Apex Court remitted the matter to this Court. The operative part of the order reads as under :- "The matter is remitted to the High Court, which shall formulate substantial questions of law, if any and then deal with the matter. Needless to say if there is/are questions(s) of law, the appeal has to be dismissed. We express no opinion in that regard. Appeals are allowed without any orders as to costs." The brief facts of the present case are that Mahavir, son of Balbir, who was a minor, filed a suit for pre-emption through his mother on the ground that his father vide sale deed dated 21.5.1980 sold the land measuring 17 marlas for a sum of Rs. 3000/- to defendant No. 1 Lakhmi, without any notice to the plaintiff. It was pleaded that plaintiff being a son of the vendor had a preferential right of pre-emption as against the vendee, who is a stranger and, therefore, decree be passed in his favour. The suit was contested by defendant No. 1 Lakhmi stating that pre-emption money had not been deposited in time. It was further pleaded that the suit has been brought by defendant No. 2 vendor through the plaintiff. The suit land was sold by the defendant as karta of the family and therefore, the impugned sale is not pre-emptible. He also claimed compensation of Rs. 10,000/- on account of boundary wall and two rooms constructed by him after purchases of suit land. The trial Court after taking into consideration the pleadings of the parties, struck the following issues :- "1. Whether the plaintiff has got a preferential right to pre-emption ? OPP. 2. Whether the suit has been filed by the plaintiff in collusion with defendant No. 2 ? If so the what effect ? OPD. 3. Whether the suit land was sold by defendant No. 2 as karta of the Joint Family and as such the impugned sale is not pre-emptibale ? OPD. 4. Whether the defendant No. 2 is Lohar and the sale being a Muslim is not pre-emptible ? OPD 5. Whether the defendant/vendee has raised two pucca rooms and boundary wall around the site in dispute ? If so to what effect ? OPD. 6. Whether the defendant/vendee is entitled to the expenses of stamp and registration charges ? OPD. 7. Relief."
(3.) ISSUE No. 1 was decided in favour of the plaintiff. On issue No. 5, it was held that since the defendant has raised construction within one year after sale, therefore, he is not entitled to any compensation for the same. Accordingly, the suit was decreed. Since aggrieved, defendant No. 1 Lakhmi filed an appeal against the judgment and decree of the trial court. Before the 1st Appellate Court, learned counsel for the appellant/defendant conceded issue No. 1, as there was ample evidence to prove the relationship between the pre-emptor and the vendor and thus, only issue No. 5 was left before the Court for adjudication. After considering the pleadings of the parties, evidence on record, the 1st Appellate Court dismissed the appeal of the defendant.;