JAIN, J. - (1.) DEFENDANT No. 1 Mohan Lal has preferred this second appeal against the judgment and decree dated 24th of September, 1986 passed by the Additional District & Sessions Judge No. 5, Jaipur City, Jaipur, in Civil Regular Appeal No. 54/1981, whereby the first appellate court set aside the judgment and decree passed by the lower court dismissing the suit of the plaintiff, and decreed the suit of the plaintiff-respondent No. 1 for pre-emption in respect of the property, in dispute.
(2.) THIS Court formulated the following substantial questions of law involved in this second appeal:- 1. Whether in absence of any pleading, evidence or issue as to the matters covered by the provisions of Section 6 (1) (ii) and (iii) pleading the stair case to be common and/or the relationship between the plaintiff and the defendant No. 2 being those of the owners of the property servient or dominant to the property transferred having been specifically pleaded and established? 2. Whether the plaintiff Thakurji Shri Shyam Sunderji virajmaan through Revati Prasad Sharma has locus standi to file the present suit for pre-emption against the defendants and further whether the temple of plaintiff Thakurji Shri Shyam Sunderji Virajmaan belongs to Meena community or it is a personal property of Revati Prasad Sharma. Both the learned counsel for the parties argued the case at length on the aforesaid substantial questions of law and in support of their respective contentions cited case law also. Briefly stated the facts of this second appeal are that on 4th of January, 1969 the plaintiff-respondent No. 1 (hereinafter shall be referred to as `the plaintiff') filed a suit for pre- emption under the provisions of the Rajasthan Pre-emption Act, 1966. It was pleaded in the plaint that the plaintiff's temple is situated in Chowkari Topkhana Desh at Kishanpole Bazar, Jaipur City, Jaipur. The description of the temple was given in para 1 of the plaint. It was further pleaded that there is one room facing eastern side towards northern side of the temple and one `medhi' belonging to defendant No. 2, which has been sold by him to defendant No. 1 through sale deed dated 18th of October, 1968, registered on 13th November, 1968 for a consideration of Rs. 3000/ -. A map was also annexed with the plaint. The plaintiff's temple, shops and staircase were shown in yellow colour and the sold property was shown in blue colour. It was also pleaded that there is only one way to go on the said room and `medhi' through the staircase and roof of veranda belonging to the plaintiff. There is one door belonging to the plaintiff on the said staircase, which is closed and opened by the plaintiff only. The plaintiff further pleaded that the defendant No. 2, without giving any notice or asking to the plaintiff, sold the aforesaid room, `medhi' and roof of veranda to the defendant No. 2 whereas the plaintiff had preferential right to purchase the said room and `medhi' and, as such, the plaintiff is entitled to get the said property after payment of Rs. 3000/- (Rupees three thousand only), to the defendants. When the plaintiff came to know about the said sale then he immediately told the defendants to sale the said property to the plaintiff after taking a sum of Rs. 3000/- and give possession of the same but the defendants refused for the same, therefore, the cause of action arose on 18th of October, 1968 and the suit was filed within the period of limitation. It was prayed in the plaint that a decree of limitation. It was prayed in the plaint that a decree be passed in favour of the plaintiff and against the defendants in respect of the property, as described in Para 2 of the plaint, for possession after payment of Rs. 3000/- by the plaintiff to the defendant No. 2. The defendant No. 1 filed his written statement wherein he denied the contents of the plaint, as mentioned by the plaintiff. The execution and registration of the sale deed was accepted but other contents were denied. It was admitted that to reach at the disputed house a person has to pass through staircase facing eastern side and thereafter from the roof of verandas but all roofs of verandas are a Government property and the plaintiff has no right of ownership on them. So far as permission of the plaintiff to purchase the disputed house is concerned, it was pleaded that the plaintiff is a deity, who is perpetual minor, therefore, there was no question of asking the deity. So far as Revati Prasad Son of Shri Hira Lal Pujari is concerned, a consent was taken from him. It was also pleaded that he told Revati Prasad that in case trustees want to purchase the disputed room and `medhi' with roof of veranda then they may purchase it, but they shown their inability to purchase the same for a consideration of Rs. 3000/ -. The plea of estoppal and waiver was also taken in the written statement. It was also pleaded that the plaintiff is neither a co-sharer of first degree nor second degree. The right of pre-emption in property was denied. It was also pleaded that pre-emption has been claimed on the basis of right of way and even if the roof used as way is assumed to be of plaintiff then also the right of way goes only up to the roof of veranda belonging to Sita Bai and not thereafter, therefore, there is a break in his right. It was also pleaded that all verandas in Kishanpole Bazar, Jaipur City, is a public property. It was also pleaded that shops belong to Thakurji Shri Shyam Sunderji and deity cannot claim any right of pre-emption. It was also pleaded that the temple of Thakurji Shri Shyam Sunderji belong to Meena Community and Bhairon Sahai and other Meenas are its trustees and they are Sewayat and Manager of the deity. Revati Prasad is merely a Pujari and his position is not more than a servant, therefore, Pujari has no right to file a suit. The other pleas were also taken in the written statement and it was prayed that the suit of the plaintiff be dismissed with costs. The defendant No. 2 also filed his separate written statement wherein he admitted the sale of room and `medhi' and other contents were denied. The roof of veranda was not belonging to defendant nor it has been sold. The defendant had only right of use of veranda which has been sold. The roof of veranda is a government property. It was also pleaded that the plaintiff is a deity, therefore, there was no need to ask deity before sale of the property, but before sale of the property the defendant had asked the Pujari Revati Prasad and other trustees about it but they refused to purchase the same and had given consent to sale it to defendant No. 1. It was also pleaded that the plaintiff is a juristic person and has no right of pre-emption. The other pleas were also taken in the written statement and it was prayed that the suit of the plaintiff be dismissed.
(3.) ON the basis of the pleadings of the parties the learned lower Court framed ten issues, which have already been reproduced in the judgment of the lower court. Both the parties led their oral and documentary evidence in support of their case. The learned lower Court, vide its judgment and decree dated 15th of December, 1980 dismissed the suit of the plaintiff with costs. Being aggrieved with the same, the plaintiff preferred an appeal. The first appellate court, vide its judgment and decree dated 24th of September, 1986 allowed the appeal and set-aside the judgment and decree of the lower court and decreed the suit of the plaintiff and it was directed that in case the plaintiff deposits a sum of Rs. 3000/- within a period of two months, then the property, in dispute, may be transferred in favour of the plaintiff through sale deed, hence this second appeal has been preferred on behalf of the defendant No. 2, the purchaser of the property. During the pendency of this second appeal, the appellant filed two applications under Order 41 Rule 27 of the CPC, which were allowed and the documents annexed with the applications were taken on the record. Thereafter the respondent No. 1 also filed an application under Order 41 Rule 27 of the CPC and the same was also allowed and the documents annexed with the application were also taken on the record. ;