D.B. Civil Special Appeal No.17/91 Zorawar Mal vs. LRs of Sri Kishan. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT Zorawal Mal vs. LRs. of Sri Kishan D.B. Civil Special Appeal No.17/1991 under Section 18 of the Rajasthan High Court Ordinance,1949 against the judgment and decree dated 21.2.1991 passed by the learned Single Judge in S.B. Civil First Appeal No.26/1977. Date of Order:- May 6th ,2009. PRESENT HON'BLE THE CHIEF JUSTICE MR.DEEPAK VERMA. HON'BLE MR. JUSTICE PRAKASH TATIA. Mr. Zorawar Mal appellant in person. Mr. D.R. Bhandari) Mr. R.K. Purohit ), for the respondents. REPORTABLE BY THE COURT ( Per Hon'ble Mr.Tatia,J.): This D.B. Civil Special Appeal under Section 18 of the Rajasthan High Court Ordinance, 1949 is directed against the judgment and decree dated 21.2.1991 passed by the learned Single Judge in S.B. Civil First Appeal No.26/1977, whereby the learned D.B. Civil Special Appeal No.17/91 Zorawar Mal vs. LRs of Sri Kishan. 2 Single Judge reversed the judgment and decree dated 28.2.1977 passed by the court of Addl. District Judge No.2, Jodhpur and dismissed the suit of the plaintiff filed in exercise of his right for pre-emption. As per the facts pleaded in the plaint and in further and better particulars submitted in the trial court on the direction issued by the trial court vide order dated 8.2.1974, the original ancestor of the plaintiff was Roop Raj Bora. His son was Fateh Ram Bora. Fateh Ram Bora had three sons-Har Narayan, Narsingh Das and Ram Narayan. Thereafter, it has been stated in further and better particulars that Har Narayan and Narsingh Das got the house from Fateh Ram. How it came to two sons of Fateh Ram and what happened to Ram Narayan son of Fateh Ram, has not been disclosed in the plaint or in further and better particulars. Be it as it may be, it has been stated that after the death of Har Narayan and Narsingh Das, in the year 1934-35, the ancestral house was partitioned and it has been specifically pleaded that to give effect to the partition by metes and bounds, at some portion tati was erected and on some portion, even wall was constructed. In para 5 D.B. Civil Special Appeal No.17/91 Zorawar Mal vs. LRs of Sri Kishan. 3 of the plaint, the plaintiff pleaded that in front of plaintiff's ora and maliya (both are small rooms), towards southern side, there is plaintiff's one land, 7 feet wide and 8 feet in length, which goes to the house in dispute, obviously, which came in the hands of Smt. Chothi Bai, the descendant of Narsingh Das by virtue of gift, then sold to defendant no.1. Then it is pleaded that the land of same dimension of Smt. Chothi Bai is coming towards the house of the plaintiff. It is also pleaded that the house is constructed in such a manner that some apartment of the property falling in the share of the plaintiff, is abutting in/on the property of the defendant Smt.Chothi Bai and some apartment of defendant's apartment are coming over the property of the plaintiff. Then it has been pleaded that the construction of house is of such type that the house cannot be sold to other person and, therefore, the plaintiff has right to purchase the house by virtue of his right to pre-empt the sale. Inspite of said pleading in para 5, the plaintiff, in his further and better particulars, stated that 8 feet in length and 7 feet wide land referred above remained unpartitioned and the said land is in joint ownership of the plaintiff. On the basis of the pleadings, the D.B. Civil Special Appeal No.17/91 Zorawar Mal vs. LRs of Sri Kishan. 4 plaintiff submitted that Smt. Chothi Bai could not have sold the part of the house belonging to her without offering it to the plaintiff as per Section 8 of the Rajasthan Pre-emption Act, 1966 (hereinafter referred to as “the Act of 1966”). Section 8 of the Act of 1966 requires a prior notice to a person who has right of pre- emption before the other person sells the property to any stranger. Admittedly, no notice under Section 8 of the Act of 1966 was given by Smt. Chothi Bai to the plaintiff before the house in question was sold by Smt. Chothi Bai to defendant no.1 Sri Kishan vide registered sale-deed dated 8.10.1972. In view of the above, the plaintiff claimed that he is entitled to purchase the house by virtue of sub-clause (1) of sub-section (1) of Section 6 of the Act of 1966, as the plaintiff is co-sharer in the part of the property, which has been sold by Smt. Chothi Bai to defendant no.1 Sri Kishan. Defendant no.1-the purchaser who is son of vendor Chothi Bai submitted written statement and denied that the property was ancestral property of plaintiff and defendant nos. 2 and 3. According to the defendant-purchaser, the property which he had purchased, was of Har Narayan and it was not gifted by Har D.B. Civil Special Appeal No.17/91 Zorawar Mal vs. LRs of Sri Kishan. 5 Narayan to his daughters Chothi Bai and Smt. Aashi Bai. The defendant also denied that Smt. Aashi Bai withdrawn her share from the property of Har Narayan. However, he admitted that he purchased the house from defendant no.2 Chothi Bai on 8.10.1972 for a consideration of Rs.11,000/- and got the sale-deed executed in his favour from Smt. Chothi Bai. The defendant denied the joint family of Har Narayan and Narsingh Das and their joint living. He pleaded that he had no knowledge when Narsingh Das died. He also denied partition between Har Narayan and Narsingh Das of the year 1934-35. He denied that the land measuring 8' x 7' remained unpartitioned and is in joint ownership of the plaintiff and the defendant. It is also pleaded that Narsingh Das had three sons Bejiyoji, Jawahar Mal and Jeth Mal. In the house of the plaintiff, said Bejiyoji and Jeth Mal have also share and particularly the maliya and ora are belonging to widows of Jeth Mal and Bejiyoji. The defendant also denied that Jeth Mal relinquished his share in the property for a consideration of Rs.800/- as the plaintiff has not placed on record any relinquishment deed, nor the plaintiff has disclosed when said Jeth Mal relinquished his share. In sum and D.B. Civil Special Appeal No.17/91 Zorawar Mal vs. LRs of Sri Kishan. 6 substance, all the plaint allegations have been denied except admitting that the property in question was purchased him (by Sri Kishan) from defendant no.2 Chothi Bai by registered sale-deed dated 8.10.1972 for a consideration of Rs.11,000/-. The rejoinder was filed by the plaintiff to the written statement submitted by defendant no.1 wherein the plaintiff disclosed that in the sale-deed executed in favour of defendant no.1 itself, it is clearly mentioned that by registered gift deed dated 7.6.1940, the property which has been sold by Smt. Chothi Bai (defendant no.2) to defendant no.1 was given by Har Narayan to defendant nos.2 and 3 and defendant no.3 Smt. Aashi Bai relinquished her share in the property on 24.5.1970 and gave it to defendant no.2 Smt. Chothi Bai. In view of the said fact stated in the sale-deed executed by Smt. Chothi Bai in favour of Sri Kishan, the defendants cannot deny these facts and are bound by the facts mentioned in the sale-deed dated 8.10.1972. In rejoinder, the plaintiff again reiterated that to give effect to the partition of joint property of Har Narayan and Narsingh Das, a wall was constructed and that fact has also been clearly admitted in the D.B. Civil Special Appeal No.17/91 Zorawar Mal vs. LRs of Sri Kishan. 7 sale deed dated 8.10.1972 by defendant no.2 from whom the property devolved upon defendant no.1 purchaser. The plaintiff, in rejoinder in para no.3, very specifically stated that the entire disputed house has been delivered to defendant no.1 which is clear from the sale-deed dated 8.10.1972. In para no.5 of the rejoinder, then the plaintiff stated that the house in dispute came to Har Narayan and Narsingh Das from their father Fateh Ram and on this basis, obviously because of partition, the wall was constructed to give effect to the partition between Har Narayan and Narsingh Das and that wall is joint wall and then pleaded new facts that the land in front of ora and Maliya, measuring 14' x 8' remained unpartitioned and is in joint possession of the plaintiff and defendant and, therefore, the plaintiff is entitled to get the property by virtue of his right of pre-emption given by the Act of 1966. The plaintiff denied that Jeth Mal and Bijiyoji are necessary party and denied the allegation of investment of Rs.25,000/- made by defendant no.1 over the property in dispute purchased by him from Smt. Chothi Bai. D.B. Civil Special Appeal No.17/91 Zorawar Mal vs. LRs of Sri Kishan. 8 Issues were framed by the trial court on 12.10.1974 which are as under:- “1. Whether the plaintiff is a co-sharer or partner or has other right or amenity common to him in the property transferred and detailed in para No.1 of the plaint ? 2. Whether the plaintiff is entitled for pre- emption regarding the house transferred after paying the purchase money of Rs.11,000/- to the defendant No.1 as per provisions of Rajasthan Pre-emption Act, 1966 ? 3. Whether defendant No.3 is not a necessary party to the suit and has been sued wrongly ? If so, to what effect ? 4. Whether the suit suffers from Non-joinder of parties by not impleading Jethmal and widow of Bejiyoji ? 5. Whether the defendant NO.1 in his bonafide spent Rs. 25000/- on the re-construction or addition of transferred property If so, its effect ? 7. Relief ?” and one more additional issue was framed on 3.5.1976 which is as under:- “6. Whether the portion now belonging to D.B. Civil Special Appeal No.17/91 Zorawar Mal vs. LRs of Sri Kishan. 9 Mst.Assi Bai intervenes between the houses of the plaintiff and the defendant No.1 and, therefore, the plaintiff has lost his right of pre-emption ? If so, its effect ? In the trial court, the plaintiff gave his statement as PW-1 and produced copies of sale-deed (Ex.1), gift-deed (Ex.2) of the year 1940, rent-deed (Ex.3), original Patta (Ex.4) and affidavit (Ex.5). In rebuttal, defendant Sri Kishan gave his statement as DW- 1 and produced witnesses DW-2 Gulam Rasul, DW-3 Pusa Ram and DW-4 Sukh Deo. The trial court decreed the suit of the plaintiff vide judgment and decree dated 28.2.1977. While deciding issue no.1, the trial court observed that though the facts pleaded in plaint have been denied by the defendant Sri Kishan in the written statement but he admitted the relevant facts in his statement given in court and he admitted about the manner in which the property is constructed and it is proved that in front of the ora and Maliya, in the southern side, there is a land about 7-8 feet wide and 8 feet in length, which comes to the defendant's house and the land of same measurement goes to the plaintiff's house. The D.B. Civil Special Appeal No.17/91 Zorawar Mal vs. LRs of Sri Kishan. 10 defendant Sri Kishan also admitted that there is one bhakhari (very small room) which has come in the ownership of defendant and under which there is another bhakhari(small room) which is of the plaintiff. He also admitted that the plaintiff's one maliya (again a very small room) in the first floor, extends over the plaintiff's house and in the same manner, two more apartments are in the house. The defendant also admitted that initially property was belonging to Fateh Ram and thereafter it was divided in two portions. The trial court, on the basis of these admission of defendant, held that the plaintiff is entitled to get the sale-deed in his favour by virtue of Section 6(1) of the Act of 1966. The trial court rejected the defendant's contention that he has invested any money of Rs.25,000/- over the property after he purchased the property. The trial court also held that the decree obtained by Smt. Aashi Bai for partition of her share against defendant Smt. Chothi Bai appears to have been obtained to defeat the right of the plaintiff and because of this decree, the plaintiff's right to get the property by exercise of his right of pre-emption, can not be defeated. With these reasons, the trial court passed the decree on D.B. Civil Special Appeal No.17/91 Zorawar Mal vs. LRs of Sri Kishan. 11 28.2.1977 in favour of the plaintiff-appellant. Being aggrieved against the said judgment and decree dated 28.2.1977, the defendant Sri Kishan preferred S.B.Civil Regular First Appeal No.26/1977 before this Court which was allowed by the learned Single Judge vide judgment and decree dated 21.2.1991. In the opinion of the learned Single Judge, since the fact which goes to the root of the matter was that the property in question once owned by Fateh Ram has been partitioned between his two sons Har Narayan and Narsingh Das and the plaintiff being grand-son of Narsingh Das, it cannot be said that the plaintiff was co-sharer in the disputed property nor he can be said to be a partner. The learned Single Judge further held that the plaintiff has no claim of right of pre-emption on the ground of common stair-case or an entrance or other right or amenity common to such other property and the property transferred and thereafter it has been held that the plaintiff's case does not fall in either of the conditions given in Section 6(1) of the Act of 1966. Being aggrieved against the judgment and decree passed by the learned Single Judge dated 21.2.1991, reversing the judgment D.B. Civil Special Appeal No.17/91 Zorawar Mal vs. LRs of Sri Kishan. 12 and decree of the trial court dated 28.2.1977, the appellant has preferred this D.B.Civil Special Appeal. The appellant drawn our attention to the facts pleaded and which have been admitted by the defendant in his statement in the trial court and submitted that the defendant has originally denied the plaint allegations with respect to the manner of construction of the house in dispute as well as denied the fact that the property in question was originally belonging to Fateh Ram and devolved upon the plaintiff in one strip and in another strip, ultimately to Smt. Chothi Bai . The defendant in his statement clearly admitted that over plaintiff's one accommodation, the defendant's accommodation is situated and because of this nature of property where one's property is situated over other's property and again over other's property is situated over one's property, the properties cannot be used independently. It is also submitted that there is plaintiff's floor about 8' x 7' and defendant's floor of same measurement are reaching to each other's portion, therefore, if a person is co-owner in even part of the property sold, even then he has right to purchase the property by virtue of right given by sub- D.B. Civil Special Appeal No.17/91 Zorawar Mal vs. LRs of Sri Kishan. 13 clause (i) of sub-section (1) of Section 6 of the Act of 1966. The appellant has relied upon the judgment of the Hon'ble Apex Court delivered in the case of Bhau Ram vs. Baij Nath Singh and others ( AIR 1962 SC 1476) wherein it has been held that the law of pre-emption in favour of a co-sharer is that if sales take place the property may eventually come into the hands of one co- sharer as full owner and that would naturally be great advantage. The advantage is all the greater in the case of residential houses and Section 6 is concerned with urban property for the introduction of an outsider in a residential house would lead to all kinds of complications. The advantages arising from such a law or pre- emption are clear and in our opinion out weight the disadvantages which the vendor may suffer on account of his inability to sell the property to whomsoever he pleases. The same view was taken by Hon'ble the Apex Court in the cases of Sant Ram v. Labh Singh (AIR 1965 SC 314) and Atma Ram v. State of Haryana (AIR 1986 SC 859). The appellant further submitted that the judgment of the learned Single Bench based on two decisions of this Court, namely, Nen Mal v. Kanmal (1987 RLW 658) and Dharam Pal v. Kaushaliya D.B. Civil Special Appeal No.17/91 Zorawar Mal vs. LRs of Sri Kishan. 14 Devi (AIR 1990 Raj. 135), has no application to the facts of this case, as the facts of both the cases were different. It has also been submitted that the decree obtained by Smt. Aashi Bai by filing suit in the year 1976 during pendency of the plaintiff's present suit filed in the year 1973, clearly shows that that has been filed only to defeat the claim of the plaintiff of pre-emption and that tactic cannot be recognized and the appellant relied upon the judgment of this Court delivered in the case of Durga Devi v. Jamna Devi ( 1962 RLW 642). The learned counsel for the respondents submitted that the suit was liable to be dismissed on the ground that the plaintiff did not give complete pedigree and did not plead how the plaintiff alone is entitled to maintain the suit for pre-emption. The plaintiff even did not plead that his father was not alive on the date when the suit was filed which event alone could have devolved the property of his grand-father upon him. It is also submitted that admittedly, the respondent-purchaser is the son of daughter of Har Narayan who was brother of Narsingh Das and the plaintiff is claiming any right, title and interest in the property through said D.B. Civil Special Appeal No.17/91 Zorawar Mal vs. LRs of Sri Kishan. 15 deceased Narsingh Das, whereas the respondent-purchaser got the property through Chothi Bai daughter of Har Narayan. Therefore, in substance, Smt. Chothi Bai was not a co-sharer in the property with either Narsingh Das or his son or the grand-son the plaintiff. It is also submitted that the suit property was partitioned by metes and bounds which is fully proved from the admission of the plaintiff in the plaint as well as from the registered gift deed dated 12.6.1940 executed long ago by brother of great grand father of the plaintiff. It is submitted that none of the portion in the house is joint property after 1940. The partition wall and the tati dividing two properties were raised in a manner that none of the person, i.e. owner of the one portion can enter or use the property of other person. That made the intention of the parties very clear that they shall not keep any right of common enjoyment in any part of the property. We considered the submissions of the learned counsel for the parties and perused the entire record and the reasons given by the two courts below. Before proceeding, it will be relevant to look into sub-section (1) of Section 6 of the Pre-emption Act, 1966 on D.B. Civil Special Appeal No.17/91 Zorawar Mal vs. LRs of Sri Kishan. 16 the basis of which alone, the plaintiff is seeking relief of decree for pre-emption so as to purchase the property sold to defendant no.1 Sri Kishan by registered sale-deed dated 8.10.1972:- “Person 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:- (i)co-sharers of or partners in the property transferred, (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. (Part (iii) has been struck down in Nen Mal's case (supra)” Hon'ble the Supreme Court in the case of Bahu Ram vs. Baij Nath Singh & ors (AIR 1962 SC 1476) recognized the right of co- sharer in following terms:- “ the right of pre-emption given to co-sharers was held to be a reasonable restriction on the right to D.B. Civil Special Appeal No.17/91 Zorawar Mal vs. LRs of Sri Kishan. 17 hold, acquire or dispose of property conferred by Article 19(1)(f) of the Constitution. What has been said there to uphold the right of pre-emption granted to a co-sharer as a reasonable restriction on the right to property applies with the same force to justify the classification of co-sharers as a class by themselves for the purpose of vesting in them the right of pre- emption. We do not think that it is necessary to restate what has been said in that case, we endorse the views expressed therein.” The co-sharer has been defined under Section 2(1) of the Rajasthan Pre-emptionAct, 1966 which is as under:- “(i) “co-sharer”- used in relation to any immovable property means any person entitled as an owner or a proprietor in the record of right or in any register prepared in accordance with law.” Sub-clause (i) of sub-section (1) of Section 6 of the Act of 1966, in addition to co-sharer's right, has given same right to the “partner in the property” but the terms “partner in the property” has not been defined in the Rajasthan Pre-emption Act, 1966 but that appears to be having the same effect as of co-sharer. A question of law cropped up in the Civil First Appeal D.B. Civil Special Appeal No.17/91 Zorawar Mal vs. LRs of Sri Kishan. 18 No.32/1992-LRs of Smt.Sire Kanwar Maloo v. Dau Das Mantri that:- “Whether co-owner of wall situated between two adjacent immovable properties are co-sharers within the meaning of Section 2(1) of the Rajasthan Pre- emption Act, 1966 read with other provisions of the Act so as to give right to the co-owner of the party- wall to pre-empt the transfer of other immovable property under Sec.6(1) of the Act.” The said question was referred to the Larger Bench and along with said reference, the present appellant's appeal was also sent to the Larger Bench for examining this aspect of the matter. The Division Bench of this Court answered the said question vide judgment dated 1.10.2007 and held that no such (pre-emption) right would accrue to a part owner of a wall, call it by “any name co-owner or co-sharer”. Therefore, the plaintiff's claim of pre- emption set up in plaint on the basis of common wall does not survive. The plaintiff-appellant in his plaint claimed pre-emption on the basis of three more grounds, (1) that the construction of house is of such nature that entitles the plaintiff to purchase the D.B. Civil Special Appeal No.17/91 Zorawar Mal vs. LRs of Sri Kishan. 19 property by exercise of his right of pre-emption, (2) that there is one piece of land “floor” measuring 7' x 8' in length of the plaintiff comes in the house of the defendant and the land (of same measurement) of the defendant comes in the house of the plaintiff and (3) it has also been claimed that since construction of ora and Maliya of both the parties are constructed in such a manner that their boundaries cannot be defined, therefore, the property cannot be sold to any other person without giving the right to plaintiff to purchase the property by exercise of pre-emption right. In support of this plea, the plaintiff gave his own statement and described the construction of the entire building to show that the house is constructed in such a manner that other party, the defendant could not have sold the property to other person. The defendant also gave his statement and in sum and substance, the manner in which the property is constructed, is not in dispute.