- (1.) THIS second appeal under Section 100 CPC impugns the judgment and decree dated 12.11.2009, passed by the Additional District and Sessions Judge No.1, Bayana, District Bharatpur, upholding the judgment and decree dated 15.09.1999, passed by the Civil Judge, (Sr. Div.), Bayana, District Bharatpur, in suit No.85/1999, whereby the original plaintiff's (since dead and represented by the appellants before this Court) suit for preemption was dismissed.
(2.) THE case set up by the original plaintiff in the suit before the trial court was that a part of Haveli popularly known as Madhai was sold by the defendant -respondent No.1, Niranjan Lal (since dead and represented by his LRs before this Court) to the defendant -respondent No.2, Mahendra Kumar (hereinafter 'the defendant No.2') on 26.11.1983 in contravention of the plaintiff's rights under the Rajasthan Preemption Act, 1966 (hereinafter 'the Act of 1966'). It was stated that the sale dated 26.11.1983 was carried out in spite of the notice dated 21.11.1983 and consequently a decree be passed in terms that on receipt of Rs.12,500/ - from the plaintiff, the defendant No.2, Mahendra Kumar, handover the possession of the suit property to the plaintiff. On receipt on notice of the suit, the defendant No.1, Niranjan Lal admitted to the factum of the execution of the sale -deed dated 26.11.1983 however stating that the sale had actually been made in favour of Khubi Ram and the name of Mahendra Kumar had wrongly been entered in the deed which was however rectified under registered modification deed dated 11.01.1984. It was submitted that the necessary rectification in the sale -deed having been carried out establishing the sale to Khubi Ram, no case was at all made out more so in view of Khubi Ram not having been impleaded in spite of him being a necessary party. It was further stated that Khubi Ram was a co -sharer in the Haveli in issue while in fact the plaintiff was not and therefore he did not have any right of preemption. It was also pointed out that even otherwise Mahendra Kumar in whose name the sale -deed was first erroneously registered was not a stranger to be in the teeth of the operating preemption law inasmuch as he was the grand son of Khubi Ram admittedly a co -sharer. It was denied that any notice dated 21.11.1983 had been sent at the instance of the plaintiff or received. It was stated that in the facts of the case Khubi Ram was a necessary party to the suit and not having been impleaded as a party, the suit was liable to be dismissed on this ground alone. Mahendra Kumar, defendant No.2 in the suit, in his written statement fundamentally supported the case set up in defence by the defendant No.1. It was reiterated that the sale dated 26.11.1983 in fact had been made in favour of Khubi Ram, a co -sharer of the Haveli in issue. It was also emphasised that the defendant No.2, Mahendra Kumar, as the grand son of Khubi Ram was not a stranger. Further that the sale -deed 26.11.1983 in the first instance had erroneously been executed in his favour and the error had subsequently been rectified by a registered modification deed dated 11.01.1984. It was stated that the property purchased was immediately adjoining to the share of Khubi Ram in the Haveli in issue in respect of which he himself had a right of preemption. On the basis of the pleadings of the parties, the learned trial court framed seven issues which are as under : .........[vernacular ommited text]........... In view of the inter -relationship between issue Nos.1 to 3, the learned trial court considered the aforesaid issues together and in the context of the evidence before it concluded that the suit was liable to be dismissed. The trial court noted that the suit for preemption as structured was based on treating the sale in the name of Mahendra Kumar, the defendant No.2, allegedly a stranger when in fact the evidence established that Mahendra Kumar was not a stranger but the grand son of Khubi Ram who admittedly was a co -sharer in the Haveli in issue. The learned trial court thus held that the plaintiff had been unable to prove his case as pleaded. The learned trial court further noted that in fact the evidence on record established that the sale had been made by Niranjan Lal to Khubi Ram as the agreement had been entered into between the two, consideration therefor had been paid for by Khubi Ram and that the initial registered sale -deed dated 26.11.1983 erroneously mentioning the name of Mahendra Kumar was only an error subsequently rectified by a registered modification deed dated 11.01.1984. The learned trial court held that no challenge to the registered modification deed dated 11.01.1984 had been laid and in fact the failure to challenge the aforesaid sale -deed also had a deleterious effect on the entire case set up by the plaintiff. The trial court further held that the plaintiff has not been able to prove that the latrine, Chowk, Corridor, staircase and exit were common in nature even though they were relevant to the assertion of the right of preemption by the plaintiff. Finally the trial court concluded that as the impugned sale was in fact made by defendant No.1 to Khubi Ram, a co -sharer, the suit for preemption as laid was liable to be dismissed. Issue Nos.4 and 5 were decided against the defendant Nos.1 and 2, but had little bearing on the outcome of the suit and its eventual dismissal in view of the findings of the trial court on issue Nos.1, 2 and 3. The judgment and decree of the trial court dismissing the preemption suit was put to challenge by way of a regular civil first appeal under Section 96 CPC. Vide judgment and decree dated 12.11.2009, the first appellate court affirmed the findings of the trial court on issue Nos.1, 2 and 3 and dismissed the first appeal. Hence this second appeal.
(3.) MR . G.K. Garg, Sr. Advocate with Mr. Yash Sharma, appearing for the plaintiff, has submitted that the judgments of the courts below are liable to be quashed and set aside on the ground of the provisions of Section 6(4) of the Act of 1966 not having been taken into consideration. It was submitted that assuming that the sale of the suit property was made to Khubi Ram admittedly a co -sharer, yet the fact remained that the plaintiff was a co -sharer of the Haveli in dispute and in this view of the matter, the learned trial court ought to have resorted to the mandate of Section 6(4) of the Act of 1966 and adjudicated the rights of the plaintiff vis a vis Khubi Ram with reference to Section 6(4)(a) and (b) of the Act of 1966. Counsel has further submitted that the conclusions of the courts below with regard to the plaintiff not having been able to prove his co -ownership of the disputed latrine, Chowk, Corridor, staircase and exit are perverse to the evidence on record. Heard the counsel for the plaintiff and perused the impugned judgments and decrees of the courts below.;