JAIN, J. - (1.) PLAINTIFF-appellants have preferred this second appeal under section 100 of the Code of Civil Procedure against the judgment and decree dated 21st of April, 1981 passed by the Additional District and Sessions Judge No. 2, Dholpur in Civil Appeal No. 3/80, whereby he allowed the appeal of the defendant No. 1 Om Prakash and set aside the judgment and decree dated 20th of March, 1972 passed by the Additional Civil Judge No. 1, Bharatpur, at Dholpur, in Civil Suit No. 26/71 (380/66), whereby the lower court decreed the suit of the plaintiffs for pre-emption under section 11 of the Rajasthan Pre-Emption Act, 1966. This court admitted this second appeal and formulated the following substantial question of law on 24. 9. 1982 : " Whether the document Exhibit A-1 dated 15. 12. 1959, whereby Badri Prasad and Ramjilal renders purported to sell some immovable property to Om Prakash as vendee, can be relied on by the vendee to prove his status as a co-sharer in the immovable property, which is the subject matter of this suit for pre-emption. "
(2.) BRIEFLY stated the facts of the second appeal are that plaintiffs Badri Prasad and Ramjilal filed a suit for pre-emption in respect of the portion of property in dispute under Section 11 of the Rajasthan Pre-Emption Act, 1966 against the defendants Om Prakash and Bhagwati Prasad. It was pleaded that the plaintiffs have a right of pre-emption in respect of the portion of the property, which has been sold by the defendant No. 2 in favour of the defendant No. 1 through registered sale-deed dated 14. 3. 1966 for a consideration of Rs. 500/ -. In the suit it was prayed that a decree of pre-emption be passed in favour of the plaintiffs and on payment of Rs. 500/- by the plaintiffs, a decree for possession be passed in favour of the plaintiffs and against the defendant No. 1. The suit of the plaintiffs was contested by the defendants. Both the defendants filed their separate written statements, wherein they denied the claim of the plaintiffs and prayed for dismissal of the suit. On the basis of the pleadings of the parties, the learned lower court framed ten issues, which are reproduced as under: " (i) Whether the plaintiffs are the exclusive owners of the portion shown by letters I and J in the plaint site plan? (ii) Whether the "chabutra D" is exclusive owned and possessed by the plaintiff? (iii) Whether the defendant Om Prakash and his father executed a sham sale-deed in collusion with the plaintiffs in favour of plaintiffs without any consideration and without giving any possession to the plaintiffs for the portions I and J in order to avoid the debt due to creditors? If so its effect? (iv) Whether the defendant Om Prakash got a sale-deed written on a stamp about his own portion of the property by the plaintiffs? (v) Whether the plaintiffs are estopped due to Sec. 53a, transfer of Property Act from challenging the title and possession of the defendant? (vi) Whether the defendant Om Prakash got the possession of the portions marked as I and J for a consideration of Rs. 400/- from the plaintiffs? (vii) Whether the defendant No. 2 had offered the portions sold to defendant No. 1 previously to the plaintiffs but the plaintiffs declined? If so, its effect? (viii) Whether the transaction was settled before the Rajasthan Pre-Emption Act came into force? If so, its effect? (ix) Whether the site plan filed with plaint is in accordance with the site? and, (x) Relief? Both the parties produced the oral as well as documentary evidence in support of their cases. The learned lower court, after considering all the facts and circumstances of the case and after scrutinizing the evidence led by the parties, decreed the suit of the plaintiff-appellants against the defendant No. 1 Om Prakash and the defendant was ordered to transfer and convey the suit property to the plaintiffs for Rs. 500/- on the plaintiff's depositing the price of Rs. 500/-, and expenses of sale-deed and registration minus the costs of the suit within a period of 60 days, the defendant shall execute the conveyance of the suit property in favour of the plaintiffs and shall handover possession and the document of the title, failing which the plaintiffs shall be entitled to apply to the court to execute the sale-deed on behalf of the defendant. Being aggrieved with the same the defendant No. 1 Om Prakash preferred an appeal. The learned first appellate court, vide its impugned judgment and decree dated 21. 4. 1981 allowed the appeal and set aside the judgment passed by the lower court and dismissed the suit of the plaintiffs, hence this second appeal.
(3.) LEARNED counsel for the appellants contended that the first appellate court has committed a serious illegality in setting aside the judgment of the lower court on the ground that Om Prakash had adverse possession over the property in dispute for more than 12 years from 15. 12. 1959 till 15. 12. 1971 whereas the plaintiffs had already filed their suit for pre-emption in court in the year 1966, therefore, the possession after the year 1966 could not have been considered as adverse possession in favour of Om Prakash, therefore, the learned first appellate court committed an illegality in allowing the appeal of the defendant No. 1 Om Prakash and the same is liable to be set aside and the judgment of the lower court should be restored. Learned counsel for the defendants supported the impugned judgment and decree passed by the learned first appellate court. I have considered the submissions of the learned counsel for both the parties. It is relevant to mention that on the basis of pleadings of the parties the learned lower court framed issue No. 7 - "whether the defendant No. 2 had offered the portions sold to defendant No. 1 previously to the plaintiffs but the plaintiffs declined? If so, its effect?" The lower court decided issue No. 7 and recorded a finding that the defendant No. 2 had offered the portion sold to the defendant No. 1, firstly to the plaintiffs but they refused to purchase the same for a consideration of Rs. 500/- and they offered only Rs. 250/ -. However, the lower court ultimately came to a conclusion that the defendant No. 2 had given an oral offer for sale of the disputed portion of the house to the plaintiffs, which cannot be said to be a notice as required under Section 8 of the Rajasthan Pre-Emption ct, 1966, therefore, oral offer is not sufficient. The finding of the lower court in respect of issue No. 7 is reproduced as under : " 20. It is admitted by the plaintiff Badri Prasad in his cross-examination that there was negotiation between him and the defendant No. 2 regarding the sale of the disputed portion of the house to him but he cannot say as to why the talks failed. As against this the defendants Badri Prasad has deposed that he had offered the disputed portion to the plaintiffs but they refused to pay more than Rs. 250/- and therefore the transfer could not be finalized. I have examined the evidence of the two parties and have reached to the conclusion that the disputed portion of the house was earlier offered for sale to the plaintiffs but they refused to purchase it for Rs. 500/ -. This is clearly stated by the defendant Badri Prasad. In view of this statement of the defendant and in view of the expressed inability of the plaintiff to disclose the cause of the failure of the talks the version of the defendant can safely be preferred to that of the plaintiffs. 21. Even though the above finding of fact has been recorded in favour of the defendants yet in my opinion the plaintiffs are not estopped from claiming right of pre-emption in this suit. In view of the clear and mandatory provision of Section 8 of the Rajasthan Pre-Emption Act the estoppal even if any of the plaintiffs is not of much avail and they are entitled to file and maintain this suit. The issue is decided accordingly. " ;