KOTHARI, J. - (1.) THIS appeal is directed against the judgment dated 30-9-1996 of learned Addl. District Judge No. 4, Jaipur City, Jaipur rejecting the civil suit No. 192/1995 (233/82) filed by the plaintiff Radhey Shyam against the defendants Vinod Kumar and Amal Kumar Choudhary claiming the right of pre-emption in respect of a portion of residential house situated at Chokdi Topkhana, Rasta Sahveeldaran Bhura Tiba, Jaipur.
(2.) ACCORDING to the plaintiff, the said residential house was owned by two persons jointly i. e. Smt. Sushila Devi and defendant No. 2 Amal Kumar Choudhary who are related, Sushila Devi being the sister-in-law (Bhabhi of Amal Kumar Choudhary ). ACCORDING to the plaintiff Radhey Shyam, Smt. Sushila Devi agreed to sell her southern part of the said residential house to the plaintiff vide agreement dated 15-6-78 and under the said agreement, possession of the said portion of house was given to the plaintiff- appellant. On 15-5-1981 the registered sale-deed was also executed in his favour and thus he became co-sharer of the said property along with the defendant No. 2 Amal Kumar Choudhary. Further according to the plaintiff, on 21-5-1981, defendant No. 2 Amal Kumar Choudhary sold his share i. e. Northern part of the residential house to the defendant No. 1 Vinod Kumar S/o Prem Shankar Tikiwal without any notice to the plaintiff though the plaintiff had a right of pre-emption being co-sharer of the property and thus his pre-emption rights namely right to be substituted in place of defendant No. 1 at the same consideration for sale of property at which it was sold to defendant No. 1 and, therefore, cause of action to file the suit arose to the plaintiff and, accordingly suit was filed claiming the aforesaid right of pre-emption. The suit was contested by the defendants saying that the defendant No. 2 had made an agreement to sell the aforesaid Northern part of the house to the defendant No. 1 Vinod Kumar on 22-4-1979 and the defendant No. 1 was also put in possession of the said portion and a registered sale-deed in his favour was executed on 20-5-1981 just after five days of the registered sale-deed executed in favour of the plaintiff by Sushila Devi and according to the defendants, plaintiff has full knowledge of the said transaction between the defendant No. 2 Amal Kumar Choudhary and defendant No. 1 Vinod Kumar and, therefore, he should be deemed to have given up his claim of pre-emption as he never expressed his willingness to purchase such portion of the property at the same consideration. Further according to the defendants, the said portion of property was offered to the plaintiff but he refused to purchase the same and, therefore, the sale in favour of defendant No. 1 Vinod Kumar could not be assailed claiming the alleged right of pre-emption. On the basis of the pleadings of the parties, the learned trial Court framed the following issues: (i) Whether the plaintiff had a right of pre-emption to purchase the disputed property? (ii) Whether on the basis of written statement of defendants partially in para Nos. 5 to 8, suit deserves to be dismissed? (iii) Whether the defendants are entitled to special damages and if so to what extent? (iv) Relief? In support of the plaint, Radhey Shyam, plaintiff himself appeared in the witness box; whereas on behalf of defendant No. 1, his power of attorney holder Prem Shankar, father of Vinod Kumar appeared as DW-1, Satish Kumar as DW-2, Chandra Bhan Giri as DW-3 and Vimal Kumar Choudhary as DW-4. Defendant No. 2 Amal Kumar Choudhary appeared in the witness box as DW-2. After considering the evidence on record, learned trial Court decided issue No. 1 holding that the plaintiff had a right of pre-emption over the disputed property in favour of the plaintiff and thus there is no contest on this issue nor any cross appeal was filed by any defendants on this issue.
(3.) HOWEVER since the issue No. 2 has been decided against the plaintiff by the learned trial Court holding that the plaintiff had waived his right and had acquiesced in the matter, therefore, on the principles of estopple he has no right to be substituted in the conveyance deed in favour of the defendant No. 1. Thus the issue No. 2 was decided against the plaintiff and the appeal is directed on this issue only. Issue No. 3 only regarding special damages to the defendants was decided against the defendants. However there is no appeal of the defendants on that issue. I have heard the learned counsel at length and perused the evidence on record. ;