IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT Smt Maina Bai Versus Abdul Kadar & another SB Civil Second Appeal No. 386/1995, under section 100 of the Code of Civil Procedure, against the judgment and decree dated 20.07.1995, passed by District Judge, Tonk, in Appeal No.16/1992, setting aside the judgment and decree dated 15.05.1992 passed by the Additional Munsif, Tonk in Civil Suit No. 25/1990 dismissing the suit filed by the plaintiff- respondent. Date of Judgment : September 12th, 2008 PRESENT HON'BLE MR JUSTICE ASHOK PARIHAR Mr RP Garg – for defendant-appellant Mr JP Goyal – for plaintiff-respondent BY THE COURT: The suit for preemption filed by the plaintiff respondent was dismissed by the trial court vide judgment and decree dated 15.5.1992, however, the above judgment and decree passed by the trial court has been reversed and set aside by the lower appellate court vide judgment and decree dated 20.7.1995, thereby, allowing the suit for preemption filed by the plaintiff respondent with necessary directions. Learned counsel for the appellant, while relying on the judgment of the Supreme Court in case of “Indira Bai Versus Nand Kishore” (AIR 1991 SC 1055), submitted that the suit has rightly been dismissed by the trial court. The preemption been weak and inequitable right and can be defeated by estoppel. On the other hand, learned counsel for the plaintiff respondent supported the judgment and decree passed by the lower appellate court. The dispute is in regard to a room with common stair case sold by defendant respondent Ramrai to defendant appellant Smt Maina Bai. Admittedly, plaintiff respondent has been a co-sharer of the stair case as also the surrounding plots belong to him. There is also no dispute that way to the disputed room and the stair case passes only through the plot (chowk) belonging to the plaintiff respondent. There is no other way to enter the room and the stair case except from the passage available from the plot belonging to plaintiff respondent. This fact itself creates a right of preemption in favour of the plaintiff respondent. The plea of estoppel is also a matter of evidence and the same has been decided by the courts below against the defendant appellant. On the basis of findings of fact, since, after due consideration, proper discretion has already been used by the lower appellate court, in the facts and circumstances of the present case, no interference is called for by this court, more so, when findings of fact do not make any substantial question of law and do not survive also as framed in the present appeal. The judgments cited by the learned counsel for the appellant is not applicable in the facts and circumstances of the present case. Accordingly, the appeal is dismissed as having no merits. In the interest of justice, the parties may comply with the directions of lower appellate court on or before 01.12.2008. (Ashok Parihar) J. bnsharma