CFA - 33/1987 -Mohan Lal Vs. Shri Chand & Ors. Judgment dt.17.3.09 1/3 S.B. CIVIL FIRST APPEAL NO.33/1987 Mohan Lal Vs. Shri Chand & Ors. Date of Order : 17th March, 2009 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. J.L. Purohit for the appellant. Mr. Suresh Shrimali for the respondents. --------- 1. This first appeal arises out of the judgment and decree of the learned trial court dated 15th January, 1987 dismissing the suit of the plaintiff namely Suit No.85/1979 filed under Rajasthan Pre- emption Act, 1966 under clause 6(1)(iii) of the Act. 2. The plaintiff claimed the said pre-emption on the basis of vicinage and his property being contiguous to the property in question sold by the defendant, the present suit was filed by the plaintiff. 3. The learned trial court by a detailed judgment after considering the entire evidence dismissed the said suit. 4. Both the learned counsels fairly submit that the judgment under appeal cannot be successfully challenges in view of the Division Bench of this Court in the case of Nen Mal and etc. Vs. Kan Mal and etc. - AIR 1988 Rajasthan 33 by which clause (b) of Section 6(1) of the Rajasthan Pre-emption Act, 1966 was struck down by this Court following the Supreme Court decision in the case of Bhau Ram V. Baij Nath Singh, AIR 1962 SC 1476. 5. Having heard learned counsels, this Court respectfully agreeing with the aforesaid decision of Division Bench and being CFA - 33/1987 -Mohan Lal Vs. Shri Chand & Ors. Judgment dt.17.3.09 2/3 bound by the same finds considerable force in contention of the learned counsel for the respondents Shri Suresh Shrimali. 6. The Division Bench of this Court in Nen Mal & Ors. Vs. Kan Mal & Ors. held as under:- “Cl.(iii) of sub-s.(1) of S.6 is invalid being violative not only of Art.19(1)(f) but also of Arts.14 and 15 of the Constitution. The rights of pre-emption given by Cl.(iii) of sub-s.(1) of S.6 of the Rajasthan Pre-emption Act, 1966 to persons claiming right of pre-emption only on basis of vicinage is unconstitutional. Cl.(iii) applies only to powers of such property who are neither co- sharers falling under Cl.(i), nor owners of any other immovable property enjoying common use of a staircase of an entrance or other right or amenity common to the two properties. Cl.(iii) of sub-sec. (1) of S.6 of the Rajasthan Act violates Arts. 14 and 15 of the Constitution inasmuch as there is no reasonable basis to classify the owner of an immovable property claiming right of pre-emption on the ground of easement alone with a co-sharer of the property instead of an owner of adjoining property who does not share any common right or amenity with the other owner. This is so because the change of ownership of either the servient or the dominant heritage in such a case does not in any manner affect either property or its enjoyment; and there is no common management of any property or any part thereof involved to which the outsider is inducted. The right to equality CFA - 33/1987 -Mohan Lal Vs. Shri Chand & Ors. Judgment dt.17.3.09 3/3 contained in Arts.14 and 15 being violated the Cl. (iii) of sub-s.(1) of S.6 is liable to be struck down as invalid. AIR 1981 Raj 119, Reserved. AIR 1963 J & K 27; AIR 1965 J & K 62 (FB) and AIR 1980 J&8 23 (FB), Dissented from. AIR 1986 SC 859, Foll.” 7. In view of the aforesaid binding precedent, the judgment of learned trial court holding that the plaintiff was not entitled to the aforesaid right of pre-emption on the basis of vicinage cannot be interfered with in the present appeal. 8. Consequently the present appeal is dismissed. No order as to costs. [ DR. VINEET KOTHARI ], J. item No.11 babulal/-