N. M. KASLIWAL, J. - (1.) THIS is a second appeal by the plaintiff in a suit for pre-emption.
(2.) BRIEF facts leading to this appeal are that the plaintiff filed a suit against the defendant No. 1 Smt. Prem Kanta, the vendee and Shri Abdul Gafoor, defendant No. 2, vendor in respect of a house sold on 23rd December, 1964 for Rs. 1,999/ -. It was alleged that towards the West and North of the portions sold, is the portion of the plaintiff and therefore, according to the custom prevailing in Jaipur City, which has been well recognised by the Judicial Courts, the plaintiff was entitled to the right of preemption being a co-sharer of the property. The defendant No. 1, Smt. Prem Kanta, admitted the purchase of the property, but denied that the plaintiff was a co-sharer. She further pleaded that the house of the plaintiff, if any, was adjoining to the disputed property and the right of pre-emption claimed on the ground of vicinage has been held to be unconstitutional. The defendant No. 2, Abdul Gafoor also filed a written statement in which he admitted the right of the plaintiff to claim pre-emption but he took the plea that the plaintiff had been told to purchase the property before the sale, but he refused to purchase the same and thereafter he had sold the property to defendant No. 1. On the basis of the aforesaid pleadings of the parties, the trial Court framed the following issues: 1. Whether the plaintiff being co-sharer of disputed premises, has right of pre-emption of the first degree? 2. Whether defendant No. 2 offered plaintiff before sale but plaintiff refused to purchase? 3. Whether defendant No. 1 has not purchased the suit premises for Rs. 1999/- but has paid only Rs. 909/-? 4. Whether the plaint is liable to be rejected as no cause of action is shown? 5. Relief? Issue No. 3 was framed on the ground that the amount of consideration was also challenged by the plaintiff. The plaintiff in support of his case examined himself as PW 1 and three more witnesses. On behalf of defendant No. 1 only one witness Ram Sahai, her father has been examined as DW 1. No evidence was led by defendant No 2. The learned trial Court under issue No. 1 held that the plaintiff's case of being a co-sharer and thereby having a right of preemption was established in favour of the plaintiff Issue No. 2 was also decided against the defendants Under issue No. 3 it was held that the burden of proving this issue that only Rs. 999/- had been paid and the sale price was not Rs 1,999/- was upon the plaintiff and he had not succeeded in proving the same and as such this issue was decided against the plaintiff. In view of the aforesaid finding the learned trial Court decreed the suit in favour of the plaintiff and ordered to deposit Rs. 1,999/- within a period of two months. The defendant No. 1 was directed to execute sale-deed in favour of the plaintiff and get it registered for the suit premises for Rs. 1,999/ -. The registration expences were directed to be borne by the plaintiff and the defendant No. 1 was directed to hand-over vacant possession of the disputed premises immediately on payment of Rs. 1,999/ -. The defendant No. 1 aggrieved against the judgment and decree of the learned trial Court went in appeal and the learned Additional Civil Judge, Jaipur City reversed the finding of the trial Court on issue No. 1 and in the result allowed the appeal and set aside the judgment and decree of the trial Court and dismissed the suit of the plaintiff with costs in both the Courts. Under these circumstances, the plaintiff aggrieved against the judgment and decree of the learned Additional Civil Judge No. l, Jaipur City, dated 21st November, 1970, has filed this second appeal. The controversy now raised in this appeal only centres round the finding of issue No. l. It was contended by Mr. Datt, learned counsel for the plaintiff appellant that the learned first appellate Court committed an error of law in holding that the facts alleged in the plaint did not show that the plaintiff was a co-sharer in the disputed property or any portion of it. It was mentioned in the plaint that the house of the plaintiff was adjoining (CHARPATWAN) to the disputed house in the West and the North. In this regard the learned first appellate Court mis-read the plaint inasmuch as it was nowhere pleaded by the plaintiff that his house was adjoining to the disputed house. In para 3 of the plaint it was clearly stated that the plaintiff had a right of pre-emption over the disputed house and that too of the first degree because the plaintiff was a co-sharer. It was further contended that the learned first appellate Court committed an error in holding that the intervening wall was not of joint ownership merely on the ground that the plaintiff had stated that the wall of rooms 'a' and 'b' in the site plan Ex 1 was 'charpatwan' The trial Court in this regard had taken a correct view that there was some confusion regarding meaning the of the word 'charpatwan' and what the plaintiff meant by the word 'charpatwan' was that there was one joint wall in between the rooms. It was also argued that the learned first appellate court committed a serious error of law in taking in view that there was variance between the pleadings and proof and in discarding the evidence of the plaintiff's witnesse merely on this ground. It was further submitted that the contents of sale-deed Ex. 2 mentioning therein that on the western and northern side the house of Radhey Shyamji Agarwal (plaintiff) were 'char-patwan', are not binding on the plaintiff. It is an admission of the defendant and cannot be used in his own favour. It was further argued by Mr. Datt that the learned trial Court had rightly utilised his site inspection note for appreciating the evidence on record and in holding that on the site there was only one wall and not two walls separately, but the learned first appellate Court wrongly brushed aside the same by observing that it should not be used as evidence itself because otherwise the Court becomes a witness and a witness cannot be a judge himself.
(3.) LEARNED counsel for the respondent argued that in the plaint though it was mentioned that the plaintiff was claiming the right of pre emption of the first degree as being a co-sharer, but it was not mentioned at all that any property of the plaintiff and the property sold was a joint one, on the contrary in the description of the boundaries of the property sold it was mentioned that on the western and northern side of the second storey the house of Radhey Shyamji Agarwal were 'charpatwan'. It is further argued that in the statement given by the plaintiff he clearly stated that in Ex. 1, the wall of 'a' and 'b' is 'charpatwan'. In the cross examination also he admitted that the wall 'a' and 'b' has been written as Charpetwan in the title deed of his own house also. It is thus contended that it was the duty of the plaintiff to have made an allegation in the plaint as to how and in what manner he was claiming a right of co-sharer in the property sold and in the absence of such pleadings, the evidence of other witnesses of the plaintiff are of no avail to prove that the walls 'a' and 'b' was a joint wall and not 'charpatwan'. In civil cases it was the duty of the plaintiff to come out with a clear and definite case regarding the mode and manner in which the plaintiff was asserting his right of pre-emption and in the absence of such pleadings, no amount of evidence led during the trial can be looked into. It was next contended that any admission made by the defendant No. 2 in the written statement was not at all binding on the defendant-respondent No. 1, because such admission has not been made during the continuance of interest in the property and has been made after the interest of the defendant No. 2 had come to an end in the property sold. Admission made by a vendor in favour of third party is not binding on the vendee, if made subsequent to the sale Reliance is placed on Maung Aung vs. Maung Shwa Lin (1 ). Reliance in this regard is also placed on Harihar Rajguru Mahapatra vs. Nabakishore Rajguru Mahapatra (2) Reliance is also placed on the following observations in Gava Ram vs. Mst Hulsi (3 ). "for a party who comes on the ground of easement, it is necessary that he should state in the pleadings that there exists a right of easement in favour of the party claiming it and it should further be shown as to in what manner the right of easement has been acquired. If it is a right by prescription, it should be clearly stated. If it is an easement of necessity, it should be clearly mentioned. . . . . . . . . . . . . . " "in civil cases, it is the duty of the parties themselves to come to court with a clear case and to establish their case by evidence. It is not for the courts either to make out a case for the plaintiff or to allow them opportunity to produce evidence which on the pleadings they are not entitle to produce. " It was further argued by the learned counsel for the respondent that it was not proper to use the observations made by the Court in spot inspection in place of the evidence itself. Spot inspection can be used only to appreciate the evidence of the parties that has come on the record but it cannot itself be taken to form part of the evidence. Reliance in this regard is placed on Jamna Das vs. Gulraj (4 ). It was further contended that the learned trial Court did not prepare any note of inspection of the spot but there is only a mention in the order-sheet dated 19th December, 1968 that the plaintiff's western and the eastern wall of the disputed room was the same i. e. the wall is joint. It is further mentioned that a hole was made in the wall and the wall was only one and not two. This order-sheet does not even contain the signature of the presiding officer. It is thus contended that no support can at all be taken of any observations made in such order-sheet, Mr. Datt, learned counsel for the appellant in this regard contended that after an amendment made in Order 18 Rule 18 C. P. C. by Amendment Act 104 of 1976, a memorandum of any relevant facts observed at such inspection shall form part of the record of the suit. It is thus contended by Mr. Datt that after the aforesaid amendment the observations made by the learned trial Court that it had inspected the site and after digging a whole in the wall had found that it was a joint wal!,j was relevant to prove that the wall was a joint one and not 'charpatwan'. Mr. Datt also placed reliance on the following observations in S. T. Krishnappa vs. Principal Munsiff, Kolar (5 ). "the provision for spot inspection by the Court contained in O. 18 R. 18 of C. P. C. is intended to advance the cause of justice and to avoid unnecessary evidence being adduced in the case and further, the record made of the facts observed during the course of observation enables the court to arrive at a correct decision. " It was further argued by Mr. Datt that the admission, if any, made by the plaintiff that the wall was 'charpatwan' was made under a wrong impression of law as he was not understanding the purport or the meaning of the word 'charpatwan' and any admission made under a wrong impression of law does not bind the party. Reliance in support of this contention is placed on M. Y. A. A. Muthuappa vs. M. Y. A. A. Muthu Karuppan Chettiar (6 ). It is further submitted that an admission which is wrong in point of fact and is evidently made in ignorance of legal rights has not binding effect on the person making it. Reliance is placed on Mt. Munia vs. Manohar Lal (7), Mangru Rai vs. Shivanand Lal (8), Nagubai Ammal vs. R. Shama Rao (9) and Bharat Singh vs. Mst. Bhagirathi (l0 ). ;