- (1.) THIS case is having a chequered history. Suit was instituted for the pre-emption in the year 1967. During the pendency of the suit the permission was granted to construct the building to the present petitioner on the condition that in case the suit is decreed the defendant present petitioner will remove the construction. Defendant petitioner also gave an undertaking before the court that he should be permitted to construct and in case the decree is passed in favour of the present non-petitioner he shall remove the construction so made. Mr. Lodha counsel for the petitioner submits that the construction has been raised by the present petitioner during the pendency of the suit.- and his client will suffer irreparable loss. Undertakings given by the parties will have to be strictly complied with otherwise people will lose faith in judicial system. Mr. Lodha cannot agitate this point now in the execution particularly when a decree has been passed by this Court and the review petition has also been rejected by this court on 10. 1. 86.
(2.) MR. Lodha has first of all submitted that Banshidhar died during the pendency of the appeal and the court was not justified in bringing the legal representatives of the deceased Banshidhar on record. MR. Lodha has relied on the case of Nan Devi V. Kamal Chand (1 ). It will not be out of place here to mention that in Rajasthan Law of Pre-emption is a codified law. Rajasthan Pre-emption Act came into force in the year 1966 It will not be out of place here to mention that the case cited by Mr. Lodha is not applicable in the instant case as the right of pre-emption is not based on customary law. On the contrary the right of pre-emption is based on codified law of pre-emption. Their Lordships of the Supreme Court in the case of Hazari v. Neki (dead) by his legal representatives (2 ). Their Lordships held as under :- " It is not correct to say that the right of pre-emption is a personal right on the part of the pre-emptor to get the re-transfer of the property from the vandee who has already become the owner of the same. It is true that the right of pre-emption becomes enforceable only when there is a sale but the right exists antecedently to the sale, the foundation of the right being the avoidance of the inconveniences and disturbances which would arise from the introduction of a stranger into the land. The correct legal position is that the statutory law of pre-emption imposes a limitation or disability upon the ownership of a property to the extent that it restricts the owner's right of sale and compels him to sell the property to the person entitled to pre-emption under the statute. In other words, the statutory right of pre-emption though not amounting to an interest in the land is a right which attaches to the land and which can be enforced against a purchaser by the person entitled to pre-empt". The statutory right of pre-emption under S. 15 (1) (a) of the Punjab Act is a heritable right and a decree for pre-emption can be passed in favour of the legal representatives of the deceased pre-emptor when the representatives are properly brought on record under the provisions of O. 22. R. 1 read with O. 22 R. 10 C. P. C. If is true that the right of pre-emption under S. 15 (1) fa) of the Punjab Act of 1913 is a personal right in the sense that the claim of the pre-emptor depends upon the nature of his relationship with the vendor. But where the condition of S. 14 exists and an involuntary transfer takes place by inheritance, the successor to the land takes the whole bundle of the rights which go with the land including the right of pre-emption. In view of S. 306 of the Succession Act the right of pre-emption under S. 15 (l) (a) does not abate with the death of the pre-emptor. " I am fortified in taking the view by the decision of the Supreme Court that the customary right of pre-emption cannot be equated with a right of pre-emption which is based on the codified law, namely, the Rajasthan Pre-emption Act, 1966. The right of pre-emption under the Rajasthan Pre-emption Act is not a persona! right on the part of the pre-emptor to get re-transfer of the property from the vendee who has already become the owner of the same. The statutory right of pre-emption is a heritable right and a decree for pre-emption can be passed in favour of the legal representatives of the deceased pre-emption. When the legal representations are properly brought on record under the provisions of Order 22. It will not be out of place here to mention that this objection was not raised even during the course of second appeal before this Court as well as at the time of hearing of the review petition. This court passed the decree. At the most it can be said if other view is taken that the decree suffers from some type of illegality but it cannot be said that the decree is a nullity.
(3.) I do not find any force in the submission made by Mr. Lodha of this point. Rajasthan Pre-emption Act, 1966 is practically similar to the Punjab Pre-emption Act and Hon'ble Supreme Court has also taken the view in the case cited above that the right of pre-emption is an inheritable right and it is not a personal right. It will not be out of place here to mention that Section 18 of the Rajasthan Pre-emption Act provides that, if in a pre-emption suit the plaintiff dies at any time before the decree has become final, if the suit shall not alote cause of action is subsisting. This section is very clear and it does not provide that the suit shall abate On the contrary it provides that the suit shall not abate as the legal representatives of the deceased will be brought on record under the provisions of Order 22. 1 do not find any force in the submissions made by Mr. Lodha and the case of Gopichand does not apply in the facts and circumstances of this case. Mr. Lodha has invited my attention to the decree passed by the trial court on 26th November, 1969, the relevant part reads as under:- ********* ;