JITENDRA RAY GOYAL, J. - (1.) SINCE these two appeals being inter -related and involve one and the same core question of pre -emption in regard to the common property, hence both the appeals are taken up together for hearing and decision vide this common judgment.
(2.) TO avoid the repetition and have clear glance over the matter, the facts of both the cases are narrated as under: S.B. Civil First Appeal No. 440/98 (Civil Suit No. 18/84 (298/95): - The plaintiff -appellant Smt. Pukhraj Devi filed a suit of right to pre -emption and permanent injunction against defendant -respondent No. 1 Smt. Pushpa Agrawal (vendee) and defendant -respondent No. 2 Gopi Chand stating therein that she and defendant -respondent No. 2 Gopi Chand (vendor) are the co -sharers of house No. 4310, situated at Rasta Kundigaron Bherunji, Ghatgate, Jaipur and they were in possession of their respective shares in the said house but defendant -respondent No. 2 Gopi Chand (vendor) sold out his share (description of which was given in Para 3 of the plaint) to defendant -respondent No. 1 Smt. Pushpa Agrawal on 5 -4 -1983 by registered sale deed without giving her any legal notice whereas the plaintiff -appellant was having first right to purchase and thus she has been deprived from purchasing the said disputed property. 3.1 The defendant -respondent No. 1 Smt. Pushpa Agrawal (vendee) while denying the averments made in the plaint stated in her written statement that the plaintiff -appellant is not the co -sharer of the disputed property and the description of the disputed property has wrongly been shown in the plaint. It was also stated that the plaintiff -appellant Smt. Pukhraj Devi does not have a right to pre -emption, otherwise also she was firstly offered to purchase the said property for consideration of Rs. 45,000/ - and on her denial the said property in dispute was sold to her (vendee), therefore, the plaintiff -appellant Pukraj Devi was not required to be given the legal notice. It was further stated that after purchase of the disputed property the defendant -respondent No. 1 has spent a sum of Rs. 10,000/ - in the repairs of the said property. It was then pleaded that the disputed property is commercial establishment in which jewellery business and manufacturing of stones is being done and therefore the plaintiff appellant has no right to pre -emption.
(3.) S . B. Civil First Appeal No. 135/99 (Civil Suit No. 297/95) : - The plaintiff -appellant Ram Prakash filed a suit for preemption against defendant -respondent Nos. 1 and 2 Smt. Pushpa Agrawal and Gopi Chand respectively vendor and vendee of the disputed property, description of which was given in Paras 3 and 4 of the plaint. According to the plaint, the plaintiff -appellant and the defendant -respondent No. 2 Gopi Chand (vendor) (since deceased) are the co -sharers of the disputed property -house No. 4310 situated at Rasta Kundigaron Bherunji, Ghatgate, Jaipur and they are in possession of their respective shares. The defendant -respondent No. 2 Gopi Chand (vendor) sold his share in the disputed house, as mentioned in Paras 3 and 4 of the plaint, to respondent No. 1 Smt. Pushpa Agrawal on 5 -4 -1983 and the plaintiff -appellant came to know about this first time on 12 -4 -1984. Since the plaintiff -appellant Ram Prakash was the co -sharer of the disputed property, therefore, he is having a right to pre -emption. It was also stated that before sale of the disputed property the plaintiff -appellant Ram Prakash was neither given any notice under Section 8 of the Right of Pre -Emption Act, 1966 nor was he offered to purchase the same, therefore, a prayer was made for a decree of pre -emption in his favour. During the pendency of the suit, on the application filed under Order 1, Rule 10 of the Code of Civil Procedure (hereinafter to be referred as the Code), defendant -respondent No. 3 Smt. Pukhraj Devi was made as a party. It is also significant to mention here that respondent No. 2 Gopi Chand (vendor) died during the pendency of the suit. 4.1 The plain tiff -appellant Ram Prakash and respondent No. 3. Smt. Pukhraj Devi expired during the pendency of this first appeal, hence their legal heirs were ordered to be brought on record. 4.2 The defendant -respondent No. 1 Smt. Pushpa Agrawal (vendee) while denying the averments made in the plaint reiterated the averments as pleaded in the written statement to the Suit No. 298/95. 4.3 The defendant -respondent No. 3 Smt. Pukhraj Devi, who is plaintiff in Civil Suit No. 298/95, filed the written statement and stated that no share of the plaintiff Ram Prakash exist in the disputed property and this suit has been filed by him in collusion with Smt. Pushpa Devi (vendee) and Gopi Chand (vendor) and the plaintiff -appellant Ram Prakash is not willing to purchase the disputed property. It was further stated that no steps were taken by the plaintiff -appellant Ram Prakash to bring the legal heirs of the deceased -respondent No. 2 Gopi Chand on record. Therefore, a prayer was made to dismiss the plaint. ;