// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Second Appeal No.7/1987 Mohan Lal (since deceased) through LRs Vimal Kumar & Others ...appellants Versus Thakurji Shri Shyam Sunderji at Kishanpole Bazar, Chowkari Topkhana Desh, Jaipur, through Revati Prasad Sharma ...plaintiff-respondent AND Smt. Manohar Devi W/o Shri Mool Singhji Charan Rajput And Four Others ...defendant-respondents Date of Order ::: 6th October, 2006 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Sagar Mal Mehta, Sr. Advocate, with Shri D.S. Poonia, Counsel for appellants Shri Ganga Lahari Pareek, Sr. Advocate, with Shri A.N. Sharma, Counsel for plaintiff-respondent #### //REPORTABLE// By the Court:- Defendant no.1 Mohan Lal has preferred this second appeal against the judgment and decree dated 24th of September, 1986 passed by the Additional District & Sessions Judge No.5, Jaipur City, Jaipur, in Civil Regular Appeal No.54/1981, whereby the first appellate court set aside the judgment and decree passed by the lower court dismissing the suit of the plaintiff, and decreed the suit of the plaintiff-respondent no.1 for // 2 // pre-emption in respect of the property, in dispute. This Court formulated the following substantial questions of law involved in this second appeal:- 1. Whether in absence of any pleading, evidence or issue as to the matters covered by the provisions of Section 6(1)(ii) and (iii) pleading the stair- case to be common and/or the relationship between the plaintiff and the defendant no.2 being those of the owners of the property servient or dominant to the property transferred having been specifically pleaded and established? 2. Whether the plaintiff Thakurji Shri Shyam Sunderji Virajmaan through Revati Prasad Sharma has locus standi to file the present suit for pre-emption against the defendants and further whether the temple of plaintiff Thakurji Shri Shyam Sunderji Virajmaan belongs to Meena community or it is a personal property of Revati Prasad Sharma. Both the learned counsel for the parties argued the case at length on the aforesaid substantial questions of law and in support of their respective contentions cited case law also. Briefly stated the facts of this second appeal are that on 4th of January, 1969 the plaintiff-respondent no.1 (hereinafter shall be referred to as 'the plaintiff') filed a suit for pre-emption under the // 3 // provisions of the Rajasthan Pre-emption Act, 1966. It was pleaded in the plaint that the plaintiff's temple is situated in Chowkari Topkhana Desh at Kishanpole Bazar, Jaipur City, Jaipur. The description of the temple was given in Para 1 of the plaint. It was further pleaded that there is one room facing eastern side towards northern side of the temple and one 'medhi' belonging to defendant no.2, which has been sold by him to defendant no.1 through sale-deed dated 18th of October, 1968, registered on 13th November, 1968 for a consideration of Rs.3000/-. A map was also annexed with the plaint. The plaintiff's temple, shops and staircase were shown in yellow colour and the sold property was shown in blue colour. It was also pleaded that there is only one way to go on the said room and 'medhi' through the staircase and roof of veranda belonging to the plaintiff. There is one door belonging to the plaintiff on the said staircase, which is closed and opened by the plaintiff only. The plaintiff further pleaded that the defendant no.2, without giving any notice or asking to the plaintiff, sold the aforesaid room, 'medhi' and roof of veranda to the defendant no.2 whereas the plaintiff had preferential right to purchase the said room and 'medhi' and, as such, the plaintiff is entitled to get the said property after payment of Rs.3000/- (Rupees three thousand only), to the defendants. When the plaintiff came to know about the said sale then he immediately // 4 // told the defendants to sale the said property to the plaintiff after taking a sum of Rs.3000/- and give possession of the same but the defendants refused for the same, therefore, the cause of action arose on 18th of October, 1968 and the suit was filed within the period of limitation. It was prayed in the plaint that a decree be passed in favour of the plaintiff and against the defendants in respect of the property, as described in Para 2 of the plaint, for possession after payment of Rs.3000/- by the plaintiff to the defendant no.2. The defendant no.1 filed his written statement wherein he denied the contents of the plaint, as mentioned by the plaintiff. The execution and registration of the sale-deed was accepted but other contents were denied. It was admitted that to reach at the disputed house a person has to pass through staircase facing eastern side and thereafter from the roof of verandas but all roofs of verandas are a Government property and the plaintiff has no right of ownership on them. So far as permission of the plaintiff to purchase the disputed house is concerned, it was pleaded that the plaintiff is a deity, who is perpetual minor, therefore, there was no question of asking the deity. So far as Revati Prasad Son of Shri Hira Lal Pujari is concerned, a consent was taken from him. It was also pleaded that he told Revati Prasad that in case trustees want to purchase the disputed room and 'medhi' // 5 // with roof of veranda then they may purchase it, but they shown their inability to purchase the same for a consideration of Rs.3000/-. The plea of estoppal and waiver was also taken in the written statement. It was also pleaded that the plaintiff is neither a co-sharer of first degree nor second degree. The right of pre- emption in property was denied. It was also pleaded that pre-emption has been claimed on the basis of right of way and even if the roof used as way is assumed to be of plaintiff then also the right of way goes only up to the roof of veranda belonging to Sita Bai and not thereafter, therefore, there is a break in his right. It was also pleaded that all verandas in Kishanpole Bazar, Jaipur City, is a public property. It was also pleaded that shops belong to Thakurji Shri Shyam Sunderji and deity cannot claim any right of pre-emption. It was also pleaded that the temple of Thakurji Shri Shyam Sunderji belong to Meena Community and Bhairon Sahai and other Meenas are its trustees and they are Sewayat and Manager of the deity. Revati Prasad is merely a Pujari and his position is not more than a servant, therefore, Pujari has no right to file a suit. The other pleas were also taken in the written statement and it was prayed that the suit of the plaintiff be dismissed with costs. The defendant no.2 also filed his separate written statement wherein he admitted the sale of room and 'medhi' and other contents were denied. The roof of // 6 // veranda was not belonging to defendant nor it has been sold. The defendant had only right of use of veranda which has been sold. The roof of veranda is a government property. It was also pleaded that the plaintiff is a deity, therefore, there was no need to ask deity before sale of the property, but before sale of the property the defendant had asked the Pujari Revati Prasad and other trustees about it but they refused to purchase the same and and had given consent to sale it to defendant no.1. It was also pleaded that the plaintiff is a juristic person and has no right of pre-emption. The other pleas were also taken in the written statement and it was prayed that the suit of the plaintiff be dismissed. On the basis of the pleadings of the parties the learned lower court framed ten issues, which have already been reproduced in the judgment of the lower court. Both the parties led their oral and documentary evidence in support of their case. The learned lower court, vide its judgment and decree dated 15th of December, 1980 dismissed the suit of the plaintiff with costs. Being aggrieved with the same, the plaintiff preferred an appeal. The first appellate court, vide its judgment and decree dated 24th of September, 1986 allowed the appeal and set-aside the judgment and decree of the lower court and decreed the suit of the plaintiff and it was directed that in case // 7 // the plaintiff deposits a sum of Rs.3000/- within a period of two months, then the property, in dispute, may be transferred in favour of the plaintiff through sale- deed, hence this second appeal has been preferred on behalf of the defendant no.2, the purchaser of the property. During the pendency of this second appeal, the appellant filed two applications under Order 41 Rule 27 of the CPC, which were allowed and the documents annexed with the applications were taken on the record. Thereafter the respondent no.1 also filed an application under Order 41 Rule 27 of the CPC and the same was also allowed and the documents annexed with the application were also taken on the record. Shri Sagar Mal Mehta, the learned Senior Counsel for the appellant, contended that the plaintiff had no right or locus-standi to file the present suit for pre- emption. The plaintiff is Thakurji Shri Shyam Sunderji but suit has been filed in the name of deity through Revati Prasad, who has claimed himself as the owner of the temple as well as the disputed staircase and roof of veranda, which is used as passage to go in the disputed room and 'medhi' whereas the temple of Thakurji Shri Shyam Sunderji belongs to Meena Community. He referred the order dated 24th of April, 1989 passed by the Assistant Commissioner Devsthan, Jaipur Division, Jaipur, in File No.285/72. The order dated 21st of // 8 // November, 1990 passed by the Devsthan Commissioner, Rajasthan, Udaipur, in Appeal No.19/89, which was filed along with the Application under Order 41 Rule 27 of the CPC. Both these orders were passed during the pendency of this second appeal. From these orders it appears that one Ram Pratap Meena filed an application for registration of temple i.e. plaintiff Shri Shyam Sunderji in Form No.6 on 24th of June, 1964, under the provisions of the Rajasthan Public Trust Act, 1959. An enquiry was made and thereafter it was registered on 29th of January, 1970. The order of registration was challenged by Revati Prasad Son of Hira Lal, by filing an appeal before the Devsthan Commissioner, which was allowed on 10th of March, 1970 and the case was remanded back to the Assistant Commissioner, Devsthan, for passing a fresh order in respect of the registration of the temple under the provisions of the Rajasthan Public Trust Act, 1959. The enquiry was again made. The documents were produced. The witnesses were examined. Thereafter the Assistant Commissioner, Devsthan, by a detailed speaking order dated 24th of April, 1989 recorded a finding that the applicants and Meena Community are trustees of plaintiff temple Thakurji Shyam Sunderji and Shyam Sunder Son of late Shri Revati Prasad is only a Pujari. Accordingly the application in Form No.6 dated 24th of June, 1964 was allowed and the earlier order dated 29th of January, 1970 was restored by // 9 // rejecting the objection petition filed by the objector Revati Prasad. Thereafter Shyam Sunder Son of late Shri Revati Prasad filed an appeal against the order dated 24th of April, 1989, which was dismissed by the appellate authority i.e. Devsthan Commissioner, Rajasthan, Udaipur, vide its judgment dated 21st of November, 1990. The learned counsel for the appellant, therefore, contended that these judgments were passed after hearing late Shri Revati Prasad and after his death, to Shri Shyam Sunder, his son. He also referred the judgment of this Court dated 28th of March, 1995 which has been placed on the record by the respondent no.1 with its application under Order 41 Rule 27 of the CPC and it was pointed out that the order of the Devsthan Commissioner dated 21st of November, 1990 was challenged by Shyam Sunder Son of late Shri Revati Prasad before this court in S.B. Civil Writ Petition No.4292/1991 and the writ petition was also dismissed on the ground of alternative remedy. Therefore, he contended that the registration of the temple in favour of Meena Community has been finalized not only by the Assistant Commissioner (Devsthan) and the Devsthan Commissioner but by this Court also, therefore, it is clear that Pujari Revati Prasad had no locus standi to file the present suit for pre-emption in respect of the disputed property as the temple was owned by the registered trust of Meena Community, who has not filed the present suit for pre- // 10 // emption and has not challenged the sale-deed executed by the defendant no.2 in favour of the defendant no.1, which is a subject matter of the present suit. The learned counsel for the appellant further contended that right of pre-emption does not accrue in favour of the plaintiff as the case of the plaintiff does not fall within any of the three categories as mentioned in sub-section (1) of Section 6 of the Rajasthan Pre-emption Act, 1966. It is contended that the plaintiff is neither co-sharer or partner in the property transferred nor the plaintiff is owner of other immovable property with a staircase or an entrance or other right or amenity common to such other property and the property transferred. It is contended that veranda of the shops in Kishanpole Bazar, Jaipur City, is a government property, therefore, the staircase as well as the roof of veranda used as passage for going to disputed property cannot be said to be a property of the plaintiff. In this connection, Shri Sagar Mal Mehta, the Senior Counsel for the appellant, referred the judgment dated 23rd of July, 1986 of this Court passed in Prakash Chand Shukla Vs. State of Rajasthan & Others – S.B. Civil Writ Petition No.1532/1984, wherein a gazette notification, published in the Rajasthan Raj Patra dated 17th of July, 1954, has also been reproduced, whereby veranda of all the markets within four-walls of Jaipur City were declared as public-way. This court observed // 11 // that it is absolutely clear that this court after hearing all the parties including the Advocate General came to the conclusion that the Municipal Council must decide the case relating to covering of veranda, which is public property, within the four-walls of Jaipur City, in accordance with the provisions of law. The Municipal Council, Jaipur has acted in accordance with the law by issuing a notice under Section 203 of the Act and then by passing an order declaring that there is encroachment on public streets (verandas) and that the occupiers are trespassers and they must remove the encroachment forthwith. It was also observed that it is a primary duty of the Municipal Council to remove the encroachment as it was its statutory duty, therefore, having acted in accordance with law it has performed its duty under the statute leaving nothing for this court to decide. The State Government issued a notification dated June 28, 1986, published in Rajasthan Gazette Extraordinary, dated July 1, 1986, wherein it has appointed a committee to which the revisional powers have been conferred to entertain, hear and decide revision petitions against the orders of Municipal Council passed against trespassers on the verandas. The notification was reproduced wherein a High Power Committee, consisting of Shri G.K. Bhanot (IAS Retired), as Chairman, and Secretary to the Government of Rajasthan, LSG Department, and Law Secretary to the // 12 // Government of Rajasthan, as its Members, was constituted and was authorized to exercise the powers of revision. After constitution of the Committee which is in the nature of quasi-judicial Tribunal, the writ petition No.1532/1984 was disposed of on 23.7.1986. Thereafter the revision petitions were filed and the same were heard and disposed of by the Committee and the order of the Committee was challenged by Jaipur Vyapar Mahasangh, Jaipur. The notification dated 17th of July, 1954 declaring all verandas as public street/way was also challenged by Jaipur Vyapar Mahasangh. The said writ petition i.e. S.B. Civil Writ Petition No.246/2000 (D) was dismissed by this court vide judgment dated 11th March, 2000, which is reported in RLW 2000 (3) Rajasthan 1621. Shri Mehta further contended that thereafter the encroachments of verandas were removed in all the markets within the four-walls of the Jaipur City including Kishanpole Bazar where the plaintiff's temple and the disputed property is situated. He further contended that the Jaipur Vyapar Mahasangh filed D.B. Civil Special Appeal No.125/2000, against the order of the learned Single Judge dated 11th March, 2000 and the said special appeal No.125/2000 has also been dismissed by the Division Bench of this Court vide order dated 6th February, 2004 and in these circumstances it is proved beyond doubt that the veranda in front of shops in // 13 // Kishanpole Bazar is a Government property and naturally its roofs are also the government property and in these circumstances the plaintiff cannot claim a right of pre- emption in respect of disputed property, the approach of which is through roof of veranda also. Shri Mehta also contended that a right of pre- emption is a weak right as held by the Hon'ble Supreme Court in the cases of Indira Bai Vs. Nand Kishore (AIR 1991 SC 1055) and Krishna Dass Agarwal Vs. Kanhaiyalal (1996) 9 SCC 488. Shri Mehta further contended that although the plaintiff filed a suit under Section 22 of the Rajasthan Public Trust Act, 1959 for declaration and permanent injunction in the court of Munsiff & Judicial Magistrate (Junior Division), Jaipur West, Jaipur, in view of the judgment of this Court dated 28th of March, 1995, passed in S.B. Civil Writ Petition No.4292/1991, which is still pending, but the said suit under Section 22 of the Rajasthan Public Trust Act, 1959, is not maintainable as the plaintiff is claiming a title in the said suit adverse to the public trust and in support of his contention he referred in the case of Mehta Charity Trust Vs. Gulam Rasool & Others {1986 (2) WLN 433}, which is based on the judgment of the Hon'ble Supreme Court in the case of Abdul Karim Khan Vs. Raipur Municipality (AIR 1965 SC 1744). He also referred to Sections 22 and 73 of the Rajasthan Public Trust Act, // 14 // 1959. Shri Ganga Lahari Pareek, the learned Senior Advocate, appearing on behalf of the plaintiff- respondent, contended that the substantial questions of law formulated in the present case are not the substantial questions of law within the meaning of Section 100 of the CPC. In support of his contention, he referred to the decision in the case of Kondiba Dagadu Kadam Vs. Savitribai Sopal Gujar & Others {1999 (4) Supreme 108}, wherein it has been held that the conditions mentioned in Section 100 of the CPC must be strictly fulfilled before the second appeal can be maintained. After the amendment, a second appeal can be filed only if a substantial question of law is involved in the case. There is distinction in between question of law and substantial question of law. If the question of law termed as substantial question stands already decided by a larger bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on facts of the case would not be termed to be substantial question of law. Shri Pareek further contended that both the questions formulated in the present second appeal as substantial questions of law are not legal but they require enquiry of fact therefore they cannot be said to be substantial questions of law and in support of his // 15 // contention he referred the cases of Santosh Hazari Vs. Purushottam Tiwari (Dead) by Lrs. (AIR 2001 SC 965), Govindaraju Vs. Mariamman {2005 (1) Supreme 838}, Kondiba Dagadu Kadam Vs. Savitribai Sopal Gujar (AIR 1999 SC 2213). Shri Pareek further contended that in second appeal, no new point can be allowed to be raised, and in support of his contention, he referred the cases of Kshitish Chandra Purkait Vs. Santosh Kumar Purkait & Others (AIR 1997 SC 2517), Smt. Chander Kali Bail Vs. Jagdish Singh Thakur (AIR 1977 SC 2262). Shri Pareek further contended that he has placed on the record two documents i.e. the judgment dated 28th of March, 1995 passed by this Court in S.B. Civil Writ Petition No.4292/1991 and copy of the plaint under Section 22 of the Rajasthan Public Trust Act filed by the plaintiff in the lower court, which is still pending, along with an application under Order 41 Rule 27 of the CPC. He referred both the documents during the course of arguments to satisfy this court that the order of Assistant Commissioner, Devsthan, and Devsthan Commissioner, whereby the plaintiff temple was registered under the provisions of the Rajasthan Public Trust Act, in the name of Meena Community was challenged by the plaintiff by way of writ petition before this Court but the same was dismissed only on the ground of efficacious alternative remedy and as per direction // 16 // given in the judgment, the plaintiff has already filed a civil suit which is still pending in the lower court, therefore, the title of the plaintiff temple is still pending and sub-judice before the lower court and it cannot, therefore, be said that the plaintiff temple belongs to Meena community and the present plaintiff has no locus-standi to file the present suit for pre-emption in respect of the disputed property. Shri Pareek also contended that a right of pre- emption in respect of the disputed property accrued to the plaintiff under clause (ii) of sub-section (1) of Section 6 of the Rajasthan Pre-emption Act, 1966 as there is a common staircase to go in temple as well as in the disputed property. In support of his contention, Shri Pareek referred to the cases of Bhau Ram Vs. Baijnath (AIR 1962 SC 1476) and Smt. Prem Dulari Vs. Smt. Raj Kumari (AIR 1967 SC 1578). He referred that right of pre-emption accrues on the basis of common staircase as held by the Hon'ble Supreme Court, therefore, the question involved in the present case has already been decided and a question which has already been decided by the Supreme Court cannot be said to be a substantial question of law. Learned counsel for the plaintiff-respondent, Shri Ganga Lahari Pareek, also referred the finding of the first appellate court wherein it has been observed that the staircase which is used to go upper side, // 17 // belongs to the plaintiff and thereafter one reaches at the roof of veranda. The first appellate court has also observed that the roof of veranda marked as “B” was got constructed by the plaintiff and the plaintiff's right of easement to use the roof of veranda is also proved, therefore, a right of pre-emption in respect of disputed property has been accrued in favour of the plaintiff. The first appellate court has also recorded a finding that no notice was given by the defendant no.2 to the plaintiff before selling the property in dispute to the defendant no.1 and the plaintiff had refused to purchase it. Shri Pareek, on the basis of the above finding recorded by the first appellate court, contended that these findings are findings of fact by the first appellate court, which is binding in the second appeal and the same cannot be interfered with by this court. He further contended that the findings of the lower court in respect of issues no.5 to 8 were not challenged by the defendant before the first appellate court by way of cross-objection or cross-appeal, therefore, so far as the finding in respect of issues no.5 to 8 are concerned, it should