Babulal vs Madadeen and Others

D.L. Mehta, J.—This case is having a chequred history. Suit was instituted for the pre-emption in the year 1967. During The pendency of the suit the permission was granted to construct the building to the present petitioner on the condition that in case the suit is decreed the defendant present petitioner will remove the construction. Defendant petitioner also gave an undertaking before the Court that he should be permitted to construct and in case the decree is passed in favour of the present non-petitioner he shall remove the construction so made. Mr. Lodha counsel for the petitioner submits that the construction has been raised by the present petitioner during the pendency of the suit and his client will suffer irreparable loss. Undertaking given by the parties will have to be strictly complied with otherwise people will lose faith in judicial system. Mr. Lodha cannot agitate this point now in the execution particularly when a decree has been passed by this Court and the review petition has also been rejected by this Court on 10-1-86.

Mr. Lodha has first of all submitted that Banshidhar died during the pendency of the appeal and the Court was not justified in bringing the legal representatives of the deceased Banshidhar on record. Mr. Lodha has relied on the case of Nani Devi v. Komal Chand (1987) 1 Raj LR 774).

It will not be out of place here to mention that in Rajasthan Law of Pre-emption is a codified law. Rajasthan Pre-emption Act came into force in the year 1966. It will not be out of place here to mention that the case cited by Mr. Lodha is not applicable in the instant case as the right of pre-emption is not based on customary law. On the contrary the right of pre-emption is based on codified law of pre-emption. Their Lordships of the Supreme Court in the case of Hazari and Others Vs. Neki and Others, Their Lordships held as under : --

"It is not correct to say that the right of preemption is a personal right on the part of the pre-emptor to get the re-transfer of the property from the vendee who has already become the owner of the same. It is true that the right of pre-emption becomes enforceable only when there is a sale but the right exists antecedently to the sale, the foundation of the right being the avoidance of the inconveniences and disturbances which would arise from the introduction of a stranger into the land. The correct legal position is that the statutory law of pre-emption imposes a limitation or disability upon the ownership of a property to the extent that it restricts the owner''s right of sale and compels him to sell the property to the person entitled to preemption under the statute. In other words, the statutory right of pre-emption though not amounting to an interest in the land is a right which attaches to the land and which can be enforced against a purchaser by the person entitled to pre-empt.

The statutory right of pre-emption u/s 15(1)(a) of the Punjab Act is a heritable right and a decree for pre-emption can be passed in favour of the legal representatives of the deceased pre-emptor when the representatives are properly brought on record under the provisions of Order 22, Rule 1 read with Order 22 Rule 10, C.P.C. It is true that the right of pre-emption u/s 15(1)(a) of the Punjab Act of 1913 is a personal right in the sense that the claim of the pre-emptor depends upon the nature of his relationship with the vendor. But where the condition of Section 14 exists and an involuntary transfer takes place by inheritance, the successor to the land takes the whole bundle of the rights which go with the land including the right of pre-emption. In view of Section 306 of the Succession Act the right of pre-emption u/s 15(1)(a) does not abate with the death of the pre-emptor."

I am fortified in taking the view by the decision of the Supreme Court that the customary right of pre-emption cannot be equated with a right of pre-emption which is based on the codified law, namely, the Rajasthan Pre-emption Act, 1966. The right of pre-emption under the Rajasthan Pre-emption Act is not a personal right on the part of the pre-emptor to get re-transfer of the property from the vendee who has already become the owner of the same. The statutory right of pre-emption is a heritable right and a decree for pre-emption can be passed in favour of the legal representatives of the deceased pre-emptor. When the legal representatives are properly brought on record under the provisions of Order 22.

It will not be out of place here to mention that this objection was not raised even during the course of second appeal before this Court as well as at the time of hearing of the review petition. This court passed the decree. At the most it can be said if other view is taken that the decree suffers from some type of illegality but it cannot be said that the decree is a nullity.

I do not find any force in the submission made by Mr. Lodha on this point. Rajasthan Pre-emption Act 1966 is practically similar to the Punjab Pre-emption Act and Hon''ble Supreme Court has also taken the view in the case cited above that the right of Pre-emption is an inheritable right and it is not a personal right.

It will not be out of place here to mention that Section 18 of the Rajasthan Preemption Act provides that, if in a pre-emption suit the plaintiff dies at any time before the decree has become final, the suit shall not abate if the cause of action is subsisting. This section is very clear and it does not provide that the suit shall abate. On the contrary it provides that the suit shall not abate as the legal representatives of the deceased will be brought on record under the provisons of Order 22. I do not find any force in the submissions made by Mr. Lodha and the case of Gopi Chand does not apply in the facts and circumstances of this case.

Mr. Lodha has invited my attention to the decree passed by the trial court on 26th Nov. 1969, the relevant part reads as under : --

^^izfroknh bl rjg ls fM�h fd;k tkrk gS fd vxj oknh 15 fnu ds vanj vFkkZr 11&12&69 rd bl vnkyr es jde c; ukek tehu eqytkek 450@& o izfroknh x.k dk [kpkZ eqdnek o [kpkZ jftLV�h tek djk ns rks izfroknh ua- 2 us izfroknh ua- 1 dks o;ukek rk- 6&12&66 es jt tehu ds tks gdwd eqUrfdy fd;s gS os vnkyr es jde tek djkus dh rkjhd ls oknh dks bl tehu ij izkIr gq, le>s tk;saxs A

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vxj oknh mijks� rkjhd rd jde tek vnkyr gktk ugh djk ldk rks ;g nkok [kkfjt le>k tkosxk A**

It is an admitted position that Rs. 550/-were deposited by the present non-petitioner plaintiff instead of Rs. 450/-. Rs. 100/- were deposited as additional amount on account of stamp and registration charges. Mr. Lodha submits that the decree is only declaratory in nature and it does not provide that the defendant non-petitioner should be delivered possession of the property. Mr. Lodha submits that under this decree the plaintiff decree-holder cannot get possession of the property. He can file a fresh suit for the possession. u/s 13 of the Act of 1966 it is the duty of the Court while drawing a decree in the preemption suit to comply with the requirements of Section 13 by specifying the date for the payment" of the purchase money. In the instant case Rs. 550/- has been deposited instead of Rs. 450/-. In this decree it has been (sic)ifically mentioned that the pre-emptor plaintiff decree-holder will get all fights which (sic)endee had under the same. Once a tiff succeeds and obtains a decree the (sic)ee is in all cases is for possession on (sic)ent of the purchase money etc. It is true (sic)the nature of the possession which the (sic)mptor is entitled to obtain is however, (sic)e determined by the executing court at (sic)me of its execution. Vendee has obtained (sic)ssession on account of the sale effected (sic)ne vendor. Vendee is having no (sic)ependent right of possession. In such (sic)umstances, it cannot be said that it is a (sic) of deemed rejection of the prayer of the (sic)aintiff-pre-emptor regarding the possession, the contrary, taking note of the prescribed (sic)n as well as the words used in the decree it (sic)ase of deemed acceptance and the court (sic)cted that as soon as the amount is (sic)osited the pre-emptor will get ail rights (sic)ch the vendee obtained under a sale. Pre-(sic)ptor decree-holder is substituted in place the vendee and so substituted pre-emptor (sic) all rights which were acquired by the (sic)ndee including the right of possession. I do (sic)t find any force in the submissions made (sic) Mr. Lodha that the decree-holder should (sic)compelled to file fresh suit for possession.

Mr. Lodha has submitted that stamp (sic)d registration expenses in this case will be (sic)ore than Rs. 100/-. Before the executing court no details were given how much of the amount of Rs. 100/- deficit unless such submissions are made in detail and the court decides it, this court cannot decide the objections raised by Mr. Lodha. Apart from (sic)at Section 13 provides that, if the court finds for (sic) plaintiff, the decree shall specify a date nor before which the purchase money or He amount to be paid to the mortgagee shall (sic)e paid." Thus, the law provides only for the payment of purchase price u/s 13 and it does not provide for the payment of stamp duty, expenses and registration expenses. The payment of the stamp duty and the registration expenses is a part of the execution proceedings and the sale deed can only be executed if the pre-emptor decree-holder pays the amount. In such circumstances it cannot be said that the terms of the decree have been violated by the decree-holder by not making the full payment. In fact, Rs. 550/- was deposited on 4-12-69 i.e. within 15 days of the passing of the decree. I do not find any force in the submissions of Mr. Lodha on this point also.

Mr. Lodha submits that application for the possession and application for the execution of the sale deed cannot be moved simultaneously. There is no bar under the law and the application can be moved simultaneously and both the reliefs can be sought in the execution petition. Possession can be delivered after the execution of the sale deed by the Court by way of substitution of the decree-holder in place of vendee. Possession is consequential relief which can be granted by the court below after the execution of the sale deed.

I do not find any force in this revision petition filed by the petitioner. The revision petition is dismissed. Parties will bear their own costs