CSA 65/89 Radha Mohan Vs. Raghunath through LRs. & Ors. (1) In the High Court of Judicature for Rajasthan At Jaipur Bench, Jaipur J U D G M E N T In S.B. Civil Second Appeal No.65/1989 Radha Mohan Vs. Raghunath through LRs and others Date Of Judgment :: 29.6.09 P R E S E N T Hon'ble Mr. Justice Jitendra Ray Goyal Mr. S.M. Mehta, Senior Counsel with Mr. D.S. Poonia, for appellant. Mr. B.L. Mandhana with Mr. Rahul Ghiya, for respondents. ........ By the Court :- This is plaintiff's second appeal under section 100 of the Code of Civil Procedure against the judgment and decree dated 30/3/1989 passed by Additional District Judge No.2, Ajmer in Civil Appeal No.129/1985 whereby he set aside the judgment and decree of pre- CSA 65/89 Radha Mohan Vs. Raghunath through LRs. & Ors. (2) emption dated 30/6/1977 passed by Munsif Magistrate, Ajmer City (West), Ajmer in Civil Suit No.40/1975. 2. The parties shall be referred hereinafter in the same manner as they were arrayed in the plaint. 3. The plaintiff Radha Mohan filed a civil suit on 10/1/1975 with the averments that defendants No.3 Parmanand and no.4 Smt. Rampyari were owners and in possession of the residential property detailed in Schedule-A and the plaintiff owns and possesses the residential property as detailed in Schedule-B, attached with the plaint. According to the plaintiff, both the properties mentioned in Schedule-A & B are part and parcel of the building bearing AMC no.XV/290 situated in Kayasth Mohalla, Ajmer having main entrance, pole, chawk CSA 65/89 Radha Mohan Vs. Raghunath through LRs. & Ors. (3) laterine and staircases in common. It was further the case of the plaintiff that defendants No.3 Parmanand and 4 Smt. Rampyari sold away their said property to the defendant no.2 Purshottam Lal on 10/1/1974 for an ostensible consideration of Rs.4,000/- and put him in possession of the same and thereafter on 21/1/1974 defendant no.2 Shri Purushottam also sold away the said property to defendant No.1 Shri Raghunath for the same ostensible price of Rs.4,000/- whereas the real and market price of the property was Rs.3,500/-. The plaintiff claimed that he has a right of pre-emption on account of having common portion in the said house and no notice as provided under section 8 of the Rajasthan Pre-emption Act,1966 (in short the Act of 1966) was given to him by the defendants no.3 CSA 65/89 Radha Mohan Vs. Raghunath through LRs. & Ors. (4) Parmanand and 4 Rampyari and lateron by defendant no.2 Purshottam Lal. Therefore, the plaintiff prayed for a decree of pre-emption in respect of the suit property. 4. The defendant No.2 Purshottam Lal in his written statement admitted that the property was sold to him by defendants no.3 and 4 for a consideration of Rs.4,000/- which was the real consideration, but disputed the description of the properties as has been described in the plaint and stated that property of Schedule-A & B are not part and parcel of one building and stated that they are two separate locable premises. It was his further case that the suit is barred by limitation and even otherwise the plaintiff has waived his right to purchase the property, therefore CSA 65/89 Radha Mohan Vs. Raghunath through LRs. & Ors. (5) he is not entitled now to claim pre- emption. 5. The defendants No.3 Parmanand and 4 Rampyari in their separate written statements denied the plaintiff's right of pre-emption and also averred that property of Schedule-A & B are not part and parcel of one building. It was further their case that the sale was well within the knowledge and notice of the plaintiff and he never requested the defendants or anybody else to sell the disputed property to him, therefore, prayed for dismissal of the suit. 6. The defendant No.1 in his written statement while denying the plaintiff's claim of pre-emption, further stated that property detailed in Schedule-A & B are not part and parcel of one building. It was further his case CSA 65/89 Radha Mohan Vs. Raghunath through LRs. & Ors. (6) that after purchase of the said property he has incurred Rs.1316.06 as expenses as detailed in para 13 & 14 of his written statement. 7. On the basis of the pleadings of the parties as many as 8 issues were framed which have been incorporated in the impugned judgment. The plaintiff examined three witnesses and defendants produced and examined 13 witnesses. 8. The trial court after considering the evidence and rival submissions of the parties decreed the suit holding that plaintiff has a right of pre-emption over the disputed property. Aggrieved from the said judgment and decree the defendant No.1 Raghunath filed an appeal and in the appeal he also filed an application seeking amendment in his written CSA 65/89 Radha Mohan Vs. Raghunath through LRs. & Ors. (7) statement in regard to plea of limitation which was allowed by Additional District Judge No.2, Ajmer and on the basis of the amended pleadings learned Additional District Judge NO.2, Ajmer further framed four additional issues which are as under:- ''1. È या वादमः त सà पित संशोिधत जवाब दावे के पैरा नं0 18 मɅ वǔण[त बेचाननामɅ मɅ Ǒदनांक 29.11.45 व 20.9.46 के Ʈारा खरȣदȣ तथा बेची गई। 2. आया Ǒक बेनामɅ तारȣखी 29.11.1945 व 20.9.46 व 5.11.1966 अभी भी ''एǔÈ सः ट'' करते हɇ,इसिलये दावा संशोिधत जवाब दावा के पैरा नं0 18 मɅ िलखी वजहɉ से िमयाद बाहर है। 3. È या िमयाद का वाद ǒबÛ द पूव[ मɅ िनǔण[त हो जाने के ु कारण अब िमयाद का ǒबÛ द सुनवाई के योÊ य नहȣं है। ु 4. अनुतोष.'' 9. Thereafter, learned Additional District Judge remitted the case to the trial court for decision on the CSA 65/89 Radha Mohan Vs. Raghunath through LRs. & Ors. (8) additional issues. 10. After remittance, the learned trial court recorded the evidence and decided the additional issues against the plaintiff and sent back its findings to the first appellate court and in turn the first appellate court maintained the said findings and partly allowed the appeal as has been discussed here-in-before. Hence, this appeal. 11. This Court admitted the appeal for hearing on 5/5/1989 and formulated the following substantial question of law for consideration :- “Whether the courts below have erred in holding that the suit is barred by limitation under the facts and circumstances of the present case ? CSA 65/89 Radha Mohan Vs. Raghunath through LRs. & Ors. (9) 12. I have heard learned counsel for the parties. 13. Learned Senior Counsel Shri Mehta has referred the Article 97 of the Limitation Act, 1963 (in short the Act of 1963) and has contended that the plaintiff has got a fresh cause of action, firstly on 10/1/1974 when the property in question was purchased by defendant no.2 from defendants nos.3 & 4 and secondly on 21/1/1974 when the same property was sold to defendant no.2 and the present suit was filed on 10/1/1975 i.e. within one year from both the dates. He has further contended that fresh cause of action does not extinguish merely on account that plaintiff did not challenge the earlier sale deeds of the same property. 13. Per contra, learned counsel CSA 65/89 Radha Mohan Vs. Raghunath through LRs. & Ors. (10) for the respondents has made submissions that since the plaintiff did not challenge the earlier sale deeds executed in favour of defendants no.3 & 4, he has lost his right of pre-emption. It has also been argued that in view of the provisions of sections 5 & 6 of the Act of 1966 the plaintiff had no right of pre-emption and since the earlier sale deeds were not challenged by the plaintiff, the present suit stands barred by limitation under Article 97 of the Act of 1963. He has placed reliance upon the following judgments:- Indira Bai Vs. Nand Kishore, reported in AIR 1991 Supreme Court 1055, Kumar Gonsusab & Ors. Vs. Sri Mohammed Miyan URF Baban & Ors., reported in WLC (SC) Civil 2008(2) Page 737, Smt. Roopi Bai Vs. Mahaveer and others, reported in AIR CSA 65/89 Radha Mohan Vs. Raghunath through LRs. & Ors. (11) 1994 Rajasthan 133, Praveen Sahani & Anr. (Ku.) Vs. Smt. Sushila Devi reported in (RLW 2004(3) Raj. Page 1400), Radhey Shyam Vs. Vinod Kumar & Anr. reported in (RLR 2007(1) Page 759), Mangti Ram Vs. Onkar Sahai, reported in (RLW 1994(1) Page 55), Ghanshyam Vs. Chand Bihari & Ors., reported in WLC (Raj.) 2008(3) Page 21, Ramji Lal Vs. Om Prakash, reported in 2006(4) RLW Page 3042, Maganbai and Jambu Kumar, LRs. Of Magan Lal Vs. Nasir Mohammed, reported in RLR 1989(2) Page 626, and Rukmani Devi (Smt.) Vs. Prabhu Narayan & Ors., reported in 2007(2) DNJ (Raj.) 1170. 14. I have given my thoughtful consideration to the rival submissions. It would be appropriate to reproduce CSA 65/89 Radha Mohan Vs. Raghunath through LRs. & Ors. (12) sections 5 & 6 of the Act of 1966 which reads as under :- 5. Case in which right of pre-emption does not accrue.-(1) The right of pre- emption shall not accrue- (a) upon the transfer of a ship, karta, sarai, musafirkhana, dharmshala, temple, mosque or other similar buildings; or (b) upon a sale - (i) by or to the Central or State Government, or (ii) by or to any local authority, or (iii) to any company under the provisions of Part VII of the Rajasthan Land Acquisition Act,1953 (Rajasthan Act 24 of 1953), or (iv)for the purpose of manufacturing industry; or (c) on a transfer to any of the persons mentioned in section 6 to any person who has an equal or inferior right of pre- emption: or (d) in the case of a transfer by joint owners, to a party to such transfer; or (e) in respect of - CSA 65/89 Radha Mohan Vs. Raghunath through LRs. & Ors. (13) (i) any sale in execution of a decree of a civil or revenue court, or (ii) any sale in default of payment of land revenue or of any sum legally recoverable as an arrear of land revenue; Provided that, in the case contemplated by sub-clause (iv) of clause (b) the right of pre-emption shall accrue, subject to the other provisions of this Act, on the expiry of one year from the date of the registered sale deed from the date of taking physical possession of the immovable property sold if such property has not been used in good faith for the purpose for which it was ostensibly purchased. (2) Nothing in this Act shall - (a) effect the provisions of rule 88 of Order XXI of the Code of Civil Procedure, 1908 (Central Act 5 of 1908) or provisions of the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955) or of the Rajasthan Land Revenue Act, 1956 (Rajasthan Act 15 of 1956), or of the Rajasthan Colonisation Act, 1954 CSA 65/89 Radha Mohan Vs. Raghunath through LRs. & Ors. (14) (Rajasthan Act 27 of 1954); or (b) confer any person the right of pre- emption in respect of any immovable property which such person is not entitled to purchase under any law for the time being in force. 6.Persons to whom right of pre-emption accrues.-(1) Subject to the other provisions of this Act, the right of pre- emption in respect of any immovable property transferred shall accrue to, and vest in, the following classes of persons namely :- (ii) owners of other immovable property with a stair-case or an entrance or other right or amenity common to such other property and the property transferred, and (iii) owners of property servient or dominant to the property transferred. (2) Among the different classes of persons mentioned in sub-section (1), the persons of the first class will excluded those of the other classes, persons of the second class will exclude those of the third class. CSA 65/89 Radha Mohan Vs. Raghunath through LRs. & Ors. (15) (3) Among persons of the same class claiming the right of pre-emption, the person nearer in the relationship to the person whose property is transferred will exclude the more remote. (4) Where two or more persons of the same class, claiming the right of pre-emption, are equally entitled there to in all respects, the right of pre-emption, are equally entitled thereby in all respects, the court may - (a) determine, by drawing lots, the person in whose favour pre-emption may be decreed, or (b) after taking into consideration the circumstances of the case and the respective requirements of all such persons,- (i) determine which of such persons may be allowed to exercise the right in preference to the rest, or (ii) direct the division of the property equally among all such persons, each of them paying an equal share of the consideration for the transfer. CSA 65/89 Radha Mohan Vs. Raghunath through LRs. & Ors. (16) 15. Sections 5 & 6 of the Act of 1966 respectively provide for cases in which right of pre-emption does not accrue and the person to whom right of pre-emption accrues. A bare perusal of these provisions makes it clear that these provisions are not relevant on the point of limitation which is relevant point under consideration before this Court. 16. Similarly all the judgments relied upon by the learned counsel for the respondents are pertaining to merits on the point of right of pre-emption i.e. in what facts circumstances the right of pre-emption accrues and in what facts and circumstances this right stands lost (waived) but this question on the merits of right of pre-emption does not require any consideration by this Court in second CSA 65/89 Radha Mohan Vs. Raghunath through LRs. & Ors. (17) appeal as only substantial question of law framed by this Court for consideration is in regard of limitation. 17. Article 97 of the Act of 1963 reads as under :- 97 To enforce a right of pre- emption whether the right is founded on law of general usage or on special contract. One year When the purchaser takes under the sale sought to be impeached, physical possession of the whole or part of the property sold, or, where the subject-matter of the sale does not admit of physical possession of the whole or part of the property, when the instrument of sale is registered. 18. A bare perusal of the said provision makes it clear that one year's limitation from the date of registration of sale deed or the date when physical possession of the property sold was given, therefore, the present suit to CSA 65/89 Radha Mohan Vs. Raghunath through LRs. & Ors. (18) enforce the right of pre-emption was filed within one year from 10/1/1974 and 21/1/1974. 19. The submission made on behalf of the respondents that the suit is barred by limitation since the earlier sale deeds were not challenged is devoid of merit because every sale of such property gives a fresh cause of action. Both the courts below did not consider the legal position in proper way with regard to law of limitation and thus the decision on the point of limitation of both the courts below is clearly contrary to the provisions of Article 97 of the Act of 1963. 20. Learned counsel for the respondents has further argued that finding of the trial court on merits of this case with regard to right of pre- CSA 65/89 Radha Mohan Vs. Raghunath through LRs. & Ors. (19) emption, though challenged in second appeal, were not decided by the first appellate court and therefore he has made a number of submissions on merits with regard to accrual of right of pre- emption, waiver, estoppel with regard to right of pre-emption and has placed reliance upon the judgments referred herein-in-before. 21. Learned Senior Counsel Shri Mehta while opposing the above submission contended that non-challenge of the earlier sale deeds does not amount to waiver. 22. I have considered the rival submissions in the light of the judgments referred here-in-before and am of the considered view that the case should be sent back to the first appellate court for decision on issues except that of CSA 65/89 Radha Mohan Vs. Raghunath through LRs. & Ors. (20) limitation because first appellate court has not considered the other issues on merits. 23. Consequently, the judgment and decree of both the courts below on the point of limitation are set aside and it is held that suit was filed within limitation. The case is remanded to the first appellate court to decide the remaining issues on merit after giving opportunity to both the parties within a period of three months from the date of receipt of a copy of this judgment. Cost is made easy. (J.R. Goyal),J. VS Shekhawat/- Jr. P.A.