Dismissed

Manohar Lal and Anr. v. Prem Chand and Anr.

Rajasthan HC2 May 2023CFA/189/2012

Case brief

AI extract

What is this about?

Rajasthan High Court dismissed an appeal in a pre-emption suit held inadmissible because the plaintiffs failed to prove subsisting common walls or right of way. The court affirmed the lower court's finding that the property had been demolished, leaving only a vacant plot, thereby abandoning the pre-emption claim.

What did the court decide?

Judgment and decree dated 06.01.2012 of the District Judge, Doongarpur affirmed; appeal dismissed; stay petition pending applications dismissed.

Manohar Lal and Anr. Vs Prem Chand and Anr. — Consumer Protection | Rajasthan HC (2023)

¶1

[2023/RJJD/012921]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil First Appeal No. 189/2012

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LRs of Manohar Lal S/o Shri Sajjan Lalji Chobisa, aged about 76 years, resident of Mohalla Ghanti, Doongarpur, District Doongarpur (Raj.)

¶5

1/1. Smt. Bhagwati Devi W/o Late Shri Manohar Lal, aged about 78 years

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1/2. Ramkrishna Sharma S/o Late Shri Manohar Lal, aged about 53 years

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1/3. Ashok Kumar S/o Late Shri Manohar Lal, aged about 51 years

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1/4. Surendra Kumar S/o Late Shri Manohar Lal, aged about 50 years

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1/5. Vivekanand Sharma S/o Late Shri Manohar Lal, aged about 48 years

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Petitioner No.1/1 to 1/6 are resident of Mohalla Ghanti, Doongarpur, District Doongarpur (Raj.)

¶11

1/6. Smt. Mamta W/o Shri Prakash Chandra Sharma D/o Late Shri Manohar Lal, aged about 56 years, resident of Bhuvneshari Colony, Near SD Depot, Doongarpur (Raj.)

¶12

Ashok Vardhan S/o Shri Khoobchand Jain, aged about 53 years, resident of Mohalla Ghanti, Doongarpur, District Doongarpur (Raj.)

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----Appellants

¶14

Versus

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Prem Chand S/o Shri Javer Chand Dhalawat Jain, R/o Mohalla Ghanti, Doongarpur, District Doongarpur (Raj.) presently residing at Siddhi Vinayak Tea House, Bhivandi Dhamaka Naka, Ratan Theater, Bhivandi Village, District Thana, Mumbai

¶16

Mohammed Nijim S/o Mohammed Kasim, R/o Mohalla Ghanti Doongarpur, District Doongarpur (Raj.)

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----Respondents

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For Appellant(s)	: Mr.	Prateek Surana with
	Mr.	Himanshu Bumb
For Respondent(s)	: Mr.	Jitendra Ojha

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HON'BLE MS. JUSTICE REKHA BORANA

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Order

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02/05/2023

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The present regular appeal has been preferred against the judgment and decree dated 06.01.2012 passed in Civil Suit

[2023/RJJD/012921]

[CFA-189/2012]

(2 of 6)

No.28/2011 by District Judge, Doongarpur whereby the suit for pre-emption as preferred by the plaintiffs under Section 11 of the Rajasthan Pre-emption Act, 1966 (hereinafter referred to as 'the Act of 1966') has been dismissed.

¶27

The case of the plaintiffs-appellants was that the defendant No.1-respondent No.1 who was the owner of the residential premise just adjoining to the houses of the plaintiffs sold out the same to defendant No.2 Mohammed Nijim on 11.04.2005 and the sale deed qua the same was also executed. The plaintiffs have two walls and the way in common with the house of the defendants and therefore, they have a right of pre-emption. It was further averred in the plaint that the notice as served by the plaintiffs was refused to be accepted by defendant No.1 and therefore, the present suit has been preferred.

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Per contra, it was submitted by defendant No.1 that firstly, there was no house on site as alleged by the plaintiffs as of date. It was submitted that the house was in a deteriorated state and a notice was served on him by the Municipal Authorities for demolition of the house. After the property being sold out, complete three floors of the house had been demolished and as of date, there was only a vacant plot on the site. Therefore, it cannot be alleged that there were any common walls between the residential premises of the plaintiffs and defendant No.1 and they cannot claim any right of pre-emption.

¶29

Written statement was also filed by defendant No.2 and he specifically stated that after the premise been sold out to him, he got the same completely demolished and as of date no residential house existed on the site. It has further been submitted that

(3 of 6)

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neither there is common way as alleged by the plaintiffs nor were/ are there any common walls. On the basis of the pleadings, eight issues were framed by the learned Court below as under:

¶34

“ 1& vk;k oknhx.k us oknxzLr edku fcuk dkuwuh izkslsl ds izfroknh la[;k&2 dks fnukad 11-4-2005 dks 1]00]000@&:i;ks esa foØ; dj jftLVªh djokbZ] ftl ij oknhx.k dk gd”kQk dk vf/kdkj curk gS\

¶35

2& vk;k oknxzLr edku izfroknh la0&1 us tks izfroknh la0&2 dks foØ; fd;k gS] dks 1]00]000@& :i;ksa esa u djds okLro esa 65]000@& :i;ksa esa fd;k gS\

¶36

3& vk;k izfroknh la0&1 us mDr oknxzLr edku dks cspus ls iwoZ gd”kQk vf/k- dh /kkjk&8 ds varxZr dk;Zokgh ugha dh\

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4& vk;k oknhx.k okn esa feltksbZ.Mj gksus ds okn dkuwuu pyus ;ksX; ugha gS\

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5& vk;k oknhx.k dks oknxzLr edku ds foØ; ls iwoZ tkudkjh Fkh\

¶39

6& vk;k oknhx.k dks okn i= is”k djus dk dksbZ okn dkj.k u gksus ds dkj.k okn [kkfjt ;ksX; gS\

¶40

7& vk;k okn dh ekfy;r xyr :i ls de vkad dj de dksVZ Qhl esa is”k djus ds dkj.k okn [kkfjt ;ksX; gS\

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8& vk;k oknhx.k }kjk okn i= esa pkgk x;k vuqrks’k Lohdkj djus ;ksX; gS\ ”

¶42

From a comprehension of the above facts, it is evident that the basic and foremost issue is whether the plaintiffs had a right of pre-emption in the disputed property as alleged by them? Meaning thereby, fate of issue no.1 as framed by the learned Court below would decide the fate of other issues.

¶43

While deciding issue no.1, the learned Court below specifically reached to a conclusion that admittedly, there was no house on site and it was only a vacant plot of land. Therefore, the averment of the plaintiffs that there were common walls between the houses of the plaintiffs and defendant falls flat on the face of it. Had there been any common walls, the demolition of the house by the defendants would definitely have affected the houses of the

(4 of 6)

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plaintiffs which is not the case of the plaintiffs. The learned Court below reached to the specific conclusion that the plaintiffs utterly failed to establish on record any common portion/wall between their houses and therefore, it cannot be held that the plaintiffs were entitled to any decree in their favour on the basis of right of pre-emption.

¶48

Section 15 of the Act of 1966 reads as under:

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" Section 15 - Effect of loss of right of preemption prior to decree

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No decree for pre-emption shall be passed in favour of any person unless he has a subsisting right of pre-emption at the time of the decree, but where a decree for preemption has been passed in favour of a plaintiff, whether by a court of the first instance or of appeal, the right of such plaintiff shall not be affected by any transfer or loss of his interest occurring after the date of such decree:

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Provided that no voluntary transfer made in favour of the purchaser after the institution of a suit for pre-emption shall defeat any right which the plaintiff had at the date such institution."

¶52

Section 15 specifically provides that for a decree of preemption to be granted in favour of a party, a subsisting right of pre-emption at the time of passing of the decree ought to be proved and ought to exist. In the present matter, it is an admitted position on record that even before filing of the suit, the premise in question had been demolished and only a vacant plot existed on the site. Therefore, firstly, even if any right of pre-emption did exist at the time of institution of the suit, admittedly the same did not subsist/survive on the date of passing of the decree.

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[CFA-189/2012]

(5 of 6)

Therefore, in view of the specific provision of Section 15 of the Act of 1966, even otherwise, no decree could have been passed in favour of the plaintiffs. Secondly, it is clear on record that no right of pre-emption existed in favour of the plaintiffs as the plaintiffs could not establish on record any part of the premises to be used by both the parties in common.

¶57

Learned counsel for the appellants relied upon the Commissioner Report (Ex.5) to show that the way to both the houses was common. A perusal of the Commissioner Report shows that it is also of no help to the appellants as it also does not specify the way or any wall of the houses of the plaintiffs and the defendants to be in common. A bare perusal of the Report makes it clear that the gate marked as 'N' in the defendants' house and 'W' in the plaintiffs' house are totally independent and both of them open in a common Chowk. Therefore, the conclusion as arrived at by the Court below that both the houses were totally independent and did not have anything in common, cannot be interfered with, the same being based on the material and the evidence available on record. The findings on issue no.1 as reached by the learned Court below is therefore affirmed.

¶58

In view of the findings on issue no.1 having been affirmed and in view of the specific provision of Section 15 of the Act of 1966, this Court is not inclined to probe into the other issues, the same being ancillary to issue no.1.

¶59

In view of above observations, the judgment and decree dated 06.01.2012 passed by the District Judge, Doongarpur is hereby affirmed and the appeal as preferred by the appellants is dismissed .

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[CFA-189/2012]

(6 of 6)

The stay petition as well as all the pending applications also stand dismissed.

¶64

(REKHA BORANA),J

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74-Sachin/-

Manohar Lal and Anr. v. Prem Chand and Anr.

Case brief

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Manohar Lal and Anr. v. Prem Chand and Anr.

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