KOTHARI, J. - (1.) THIS appeal of defendant Smt. Rukmani Devi wife of Hari Narain is directed against the judgment and decree passed by the learned Additional District Judge No. 5, Jaipur City, Jaipur in Civil Suit No. 84/1980 (82/1973) in a suit of pre-emption filed by plaintiff Ganesh Narain.
(2.) THE plaintiff came with a case that defendant No. 2 Shanker Lal and defendant No. 3 Babu Lal son of Shanker Lal had owned the property situated at Chokri Ghat Darwaja, Bakshi Ji Ka Chowk, Jatuka Ki Gali, near Bhagchand Ji Ki Haveli at Jaipur and the house of defendant Nos. 2 & 3 and that of the plaintiff have a common chowk, a common pol and a common entrance. THE plaintiff further averred that since the defendant Nos. 2 & 3 had sold the suit property to defendant No. 1 Smt. Rukmani Devi, the present appellant without informing the plaintiff who had a prior right to purchase the said suit property being a co-sharer and having a common entrance, he filed the present suit claiming his right of preemption U/s. 6 of the Rajasthan Pre-Emption Act, 1966. THE plaintiff further stated in his plaint that the suit property was in fact sold for a sum of Rs. 11,000/- only but the apparent consideration in the registered sale deed dated 8. 6. 1972 was shown to be more at Rs. 14,999/-, therefore, the plaintiff was ready and willing to purchase the said suit property at the sum of Rs. 11,000/- and in the alternative if the court comes to the conclusion that the real sale consideration is Rs. 14,999/- then he is still ready and willing to purchase the said suit property at the said sale consideration of Rs. 14,999/ -. The suit was contested by the present appellant, defendant No. 1 who filed the written statement before the learned trial court and while admitting that the chowk and pol were common to the suit premises as well as to the residential house of the plaintiff, the defendant No. 1 further stated that yet another owner of third residential house having the same common chowk and pol was one Mr. Bhajan Lal. The defendant further stated that the plaintiff was in fact never willing to purchase the said property and he was even offered the said suit property to be purchased but he refused and thereupon with his consent and active participation only the defendant Nos. 2 & 3 sold the said property to defendant No. 1, the present appellant Smt. Rukmani Devi and, therefore, the plaintiff had no right of pre-emption and he was estopped in claiming such right of pre-emption over the suit property. It was further stated that the sale consideration of Rs. 14,999/- was the only real sale consideration and the mere fact that the plaintiff was ready and willing to purchase the suit property only for the sum of Rs. 11,000/- shows that he was not ready to purchase the said at the given sale consideration of Rs. 14,999/- and, therefore, his right of pre-emption in any case stood defeated. The learned trial court on the basis of pleadings of the parties framed the following issues in the matter:- (1) "whether there exists a vested right of pre-emption in the plaintiff on the ground of chowk and poli of the parties portion of house being in common? (2) Whether the sale under dispute has been effected for Rs. 11,000/- only as against the amount of Rs. 14,999/- entered as sale price in the sale deed? (3) Whether the defendants No. 2 & 3 sold the property in dispute to defendant No. 1 without giving any notice required to be given under section 8 of the Rajasthan Pre-emption Act? (4) In case the issue No. 2 is decided against the plaintiff, is the court fee deficient? If so, its effect on the suit? (5) Whether the plaintiff himself refused to purchase the suit property on the effect having been made to him and aided and assisted the disputed sale? If so, whether the principle of estoppal by acquiescence applies against the plaintiff? (6) Whether the right of pre-emption provided in Rajasthan Pre-emption Act is violative of Art. 19 of the Constitution of India? If so, to what effect? (7) Relief?" The learned trial court after taking the evidence and examining the various witnesses namely Pw. 1 Ganesh Narain, Pw. 2 Bhonri Lal and Pw. 3 Ramjani on the plaintiff side and Dw. 1 Hari Narain (husband of Smt. Rukmani Devi), Dw. 2 Moti Lal, Dw. 3 Shiv Karan and Dw. 4 Shanker Lal and documentary evidence Ex. 1 registered sale deed and Ex. 2 reply of the notice, came to the conclusion that the plaintiff was entitled to be substituted in the sale deed and thus decreed the suit in favour of the plaintiff. Hence this appeal by the defendant No. 1. Heard learned counsel and perused the record including the documentary evidences and statements of various witnesses.
(3.) THE map Ex. A-2 shows that the residential house of the plaintiff Ganesh Narain is situated on the left of a common chowk of 17'3" x 22'3" which chowk is common to three residential units. One belonging to the plaintiff on the left of the said chowk, one belonging to the defendant Nos. 2 & 3 which was sold to defendant No. 1 on the right side of the said chown and one belonging to Bhajan Lal. Two independent stair case from the said chowk lead to the residential house of the plaintiff on the one side and to the suit premises on the other side. THE said chowk can be accessed from a outer chown of 26'9" x 15'9" which chowk is on the front of the Gali Bakshi Ji Ki and from the said outer chowk a small pol having width of 3'9" exists and on the both sides of the said pol the rooms of residential units belonging to Bhajan Lal, who is not a party to the present suit but is a co- owner of the portion of the residential house in the north south of the said inner chowk , exist. Plaintiff Pw. 1 Ganesh Narain has stated in his statement that chowk, pol and entrance of his house and suit property was common and defendant Nos. 2 & 3 had sold the suit property for the sum of Rs. 11,000/- only whereas registry was deliberately got done at a figure of Rs. 15,000/- so that in case of his right of pre-emption being decreed he could be required to pay the higher sum of Rs. 15,000/ -. In his cross examination he has stated that the said sum of Rs. 15,000/- was given in the presence of Registrar was not known to him. Bhonri Lal, Pw. 2 had told him that the transaction was finalised at Rs. 11,000/ -. Shanker Lal, defendant No. 2 had himself told him that the house was sold for Rs. 11,000/ -. In his cross examination he however admitted that there was separate stair case for going to the house of the plaintiff and to defendant No. 1. Pw. 2 Bhonri Lal stated in his examination in chief that the chowk and pol of the said Haveli was common and Shanker Lal, defendant No. 2 had told him that his house would be sold for Rs. 11,000/ -. In his cross examination he admitted that there was no common passage through the suit premises to the residential house of the plaintiff and the entrance stair case was separate for the two residential houses having the said common chowk. Similarly Pw. 3 Ramjani has stated almost same facts as stated by Pw. 2. As against this, Dw. 1 Hari Narain, husband of defendant No. 1 Smt. Rukmani Devi has stated that the suit property was by registered sale deed dated 8. 6. 1972 for the sum of Rs. 14,999/- which was the real sale consideration of the suit property and on the said sale deed the attesting witnesses were Chagan Lal and Banshidhar. He has further stated that the plaintiff Ganesh Narain himself had shown the suit property to them and he was fully aware of the sale transaction and in fact it was offered to him also for purchase but he refused to do so at the aforesaid sum of Rs. 15,000/ -. The plaintiff himself had got the map of the suit property prepared and had taken him to the place of Basanti Lal for drafting of the registered sale deed. Even at the time of registration of the said sale deed he accompanied them but remained outside the office of the Registrar. The said witness also stated that the residential house of Bhajan Lal Mali was situated in between the house of the plaintiff and the suit property. The commonness of chowk and pol was however not disputed by Dw. 1. He has stated in his cross further that the shop of defendant Dw. 1 and that of the plaintiff was in the same street and they knew each other very well and the transaction of purchase of suit property was also mentioned by him to the plaintiff about two months before the registry. Dw. 2 Moti Lal has supported the defence version by saying that plaintiff Ganesh Narain only helped in purchase of the suit property by Smt. Rukmani Devi wife of Hari Narain for the sum of Rs. 14,999/- and the said sum of Rs. 14,999/- was given by Hari Narain to defendant Nos. 2 & 3 in the presence of the Registrar. He has also stated that there is no common passage for going from plaintiff's house to that of defendant No. 1, the suit premises. In his cross examination he stated that he is employed in the shop of Hari Narain, husband of defendant No. 1. At the time of registration he had accompanied Hari Narain to the Collectorate where plaintiff, defendant No. 1 Smt. Rukmani Devi, defendant No. 2 Shanker Lal and defendant No. 3 were also present. He did not however know why attestation of plaintiff Ganesh Narain was not obtained on the registered sale deed. Dw. 3 Shiv Karan also an employee of Hari Narain has supported the defence version in the similar manner as aforesaid. The vendor Shanker Lal himself was examined as Dw. 4 and he has also supported the case of the defendant No. 1 and said that he waited for almost one year after offering to sell the suit premises to the plaintiff Ganesh Narain as he had to marry off his four daughters but the plaintiff never agreed to purchase and kept on dilly-dallying about the same. He has also stated that he sold the house to defendant No. 1 for the sale consideration of Rs. 14,999/- and the plaintiff Ganesh Narain was also present at the time of registration of the sale deed. ;