Fakir Chand and Others vs Chandra Pal and Others

Dr. Vineet Kothari, J.—The appellant-plaintiffs having concurrently lost before the courts below in a suit for preemption have filed the present second appeal under Section 100 C.P.C.

The learned trial court of Civil Judge (Sr. Division), Hanumangarh dismissed the civil original suit No. 127/1995 (51/85) on 8.9.2000 and the learned Appellate Court dismissed the plaintiffs appeal No. 37/2007 on 19/12/2011.

The finding of the learned appellate court, which discussed in detail, while affirming the findings on issue No. 1 in favour of the defendants and against the plaintiffs, are as under:-

Learned counsel for the appellant-plaintiffs, Mr. M.C. Bhoot, Sr. Advocate submitted that since the plaintiffs were co-sharer in the jointly purchased suit property, therefore, 1/2 portion of the same could not have been sold by the defendant No. 2-Bal Kishan s/o. Ram Vilas without giving proper notice to the plaintiffs and giving them an offer to purchase the said portion of the suit property, whereas, the defendant No. 2-Balkishan sold the said property in favour of defendant No. 1 Chandra Pal s/o. Hari Chand, who was a tenant in the disputed premises, which was being used as godown by him. He submitted that both the courts below have erred being swayed away by the mere fact that suit property was divided by a wall and assuming on that basis that there was a partition of the suit property, the defendant No. 2 could sell his portion to defendant No. 1-Chandra Pal without complying with the requirement of Section 6 of the Rajasthan Preemption Act, 1966.

Learned counsel for the appellant-plaintiffs, Mr. M.C. Bhoot, Sr. Advocate, relied upon the judgment of this Court in the case of Gauri Shanker Vs. Madan Mohan and Others, in which the Division Bench of this Court held that where no partition suit was filed nor any private partition took place after the Will became operative, which would mean that both the parties continued to own the entire ''Chhota makan'' as co-sharers and once they are co-sharers, the plaintiff as a co-sharer has a right to pre-empt part of the property which was sold by other brother to Mandan Mohan.

None has appeared on behalf of the defendant to contest the present second appeal, which has come up for admission today.

Having heard the learned counsel for the appellant and upon perusal of the reasons assigned by the appellate court, quoted above, for deciding issue No. 1, this Court is of the opinion that the present second appeal does not give rise to any substantial question of law at the instance of the plaintiffs and the courts below have rightly, relying upon the evidence produced before them, held that on account of separate portion demarcated between the parties, there was a private partition of the suit property and the defendant No. 2 had a right to sell his own portion to the defendant No. 1. Evidence has come on record that the plaintiffs were also offered to purchase that portion of property but having failed to accept such offer, the defendant No. 2 sold the same to defendant No. 1, who was the existing tenant in the said portion. It is also significant to note that the plaintiffs did not claim right of preemption in respect of the entire half portion but a particular portion in that half portion, while for other shops existing on the remaining portion, which were purchased by other persons, no such right of preemption was claimed by the plaintiffs. It has also come in evidence that the suit property was not used for residence purposes and, therefore, inferring such a private partition between the parties if the right of preemption was denied to the plaintiffs, such findings cannot be said to be perverse but rather based on relevant evidence. Right of preemption is also a weak right and cannot supersede the registered sale deed executed in favour of a third party, unless the co-sharer was himself living in that portion with no wall in between them and the factum of such partition could not be inferred in the facts and circumstances of the case, as were the facts in the case law cited by the learned counsel for the appellant. Therefore, that case being distinguishable on facts cannot be applied to the present case in hand.

This Court in Radhey Shyam vs. Vinod Kumar and Anr. S.B. Civil First Appeal No. 18/1997 decided on 23/2/22007 dealt with the law of pre-emption in the following terms:-

"10. The Rajasthan Pre-emption Act, 1966 was enacted with a view to consolidate the laws in this regard which have their genesis in the Mohammedan Law in different parts of the country based on customs and it provided that right of pre-emption will accrue to specified persons in the specified order upon completion of a sale or upon passing of final decree for fore-closure, subject to the specified exemption. Section 6 enumerates the persons to whom right of pre-emption accrues and it mainly depends upon some part of immovable property like common stair-case, common entrance or other right or amenity and it accrues to the owners of property servant or dominant to the property transferred. Section 5 enumerates the case in which right of pre-emption does not accrue like transfer of a shop, katra, sarai, musafirkhana, dharamshala, temple, mosque or other similar buildings or upon a sale by or to the Central or State Government, or to any local authority, or transfer of property for manufacturing Industry etc. Section 8 envisages a notice to pre-emptors and it lays down that when any person proposes to sell, or to foreclose the right to redeem, any immovable property, in respect of which any persons have a right of pre-emption, he shall give notice to all such persons as to the price at which he is proposing so to sell or as to the amount due in respect of the mortgage proposed to be foreclosed, as the case may be. Sub-section (2) of Sec. 8 lays down that such notice shall be given through the civil court, within the local limits of whose jurisdiction the property concerned is situated, shall clearly describe such property, shall state the name and other particulars of the purchaser or the mortgagee and shall be served in the manner prescribed for service of summons in civil suits. Section 9 of the Act lays down that any person having a right of pre-emption in respect of any immovable property proposed to be sold shall lose such right unless within two months from the date of the service of such notice, he or his agent pays or tenders the price specified in the notice given under Sec. 8 to the person so proposing to sell.

Hon''ble Supreme Court in Indira Bai Vs. Nand Kishore, a case arising under the Rajasthan Pre-emption Act, held that the right of preemption is a weak and inequitable right and can be defeated by estoppel. The Hon''ble Supreme Court held as under:

"The provision in the Act requiring a vendor to serve the notice on persons having right of pre-emption is condition of validity of transfer, and therefore a pre-emptor could waive it. Failure to serve notice as required under the Act does not render the sale made by vendor in favour of vendee ultra vires. The test to determine the nature of interest, namely, private or public is whether the right which is renunciated is the right of party alone or of the public also in the sense that the general welfare of the society is involved. If the answer is latter then it may be difficult to put estoppel as a defence, but if it is right of party alone then it is capable of being abnegated either in writing or by conduct. The Act does not provide that in case no notice is given the transaction shall be void. The objective is to intimate the pre-emptor who may be interested in getting himself substituted. The Act does not debar the pre-emptor from giving up this right. Rather in case of its non-exercise within two months, may be for the financial reasons, the right stands extinguished. It does not pass on to anyone. No social disturbance is caused. It settles in purchaser. Giving up such right, expressly or impliedly cannot therefore be said to involve any interest of community or public welfare so as to be in mischief of public policy.

Even otherwise on facts found that the pre-emptor respondent knew of the sale deed, assisted the appellant vendee in raising the construction and after the construction was completed he gave notice for exercise of the right and thereafter filed the suit would itself demonstrate that the conduct of the respondent was inequitable and the Courts in this country which are primarily the Courts of equity, justice and good conscience cannot permit the respondent to defeat the right of appellant and invoke a right which is a weak and inequitable right."

In Smt. Roopi Bai Vs. Mahaveer and Others, , learned Single Judge of this court held in para No. 43 relying on the aforesaid judgment of Supreme Court that the right of preemption can be lost by estoppel and acquiescence where the property is alleged to have been offered to sale to plaintiff by vendor before it was sold to defendant/purchaser and the presence of plaintiff at the time of registration of sale deed and this probability that plaintiff was actively associated with execution of sale deed, could not be ruled out, therefore, looking to the conduct of the plaintiff, it was sufficient to estop him from claiming right of pre-emption.

In Bishan Singh and Others Vs. Khazan Singh and Another, , while dealing with the case arising under Punjab Pre-emption Act, the Hon''ble Supreme Court has laid down in para No. 11 that the right being a very weak right, it can be defeated by all legitimate methods such as a vendee allowing the claimant of a superior or equal right being substituted in his place.

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In view of aforesaid discussion on statements of various witnesses, the conclusion arrived at by the trial court that the plaintiff had acquiesced in the matter and waived his right of pre-emption, cannot be faulted. It cannot be believed that the defendant No. 1 having taken possession of the said portion of the property in 1979 having carried out some repair work and having let out two rooms to two different persons and he himself also continued to live there. All these facts would escape the notice of the plaintiff Radhey Shyam who is living in another portion of the same property and coupled with the fact that he was put to notice before giving registered sale-deed in favour of defendant No. 1 and his presence on different occasions and still keeps silent and refuses to purchase the said property at the consideration offered by defendant No. 1 clearly leads to the conclusion that he waived his right of pre-emption over the said portion of the property. The notice under Sec. 8 of the Act is not required to be in writing unless it is served through the civil court under sub-section (2). Therefore even an oral or constructive notice to the pre-emptor can be established in view of the circumstances of the case. Therefore, the findings arrived at by the trial court that the plaintiff had waived his right of pre-emption and was thus not entitled to be substituted in place of defendant No. 1 is correct and the same is affirmed by this court.

Consequently, this appeal is found to be devoid of merit and the same is accordingly dismissed. No orders as to cost.

Consequently, the present second appeal of the plaintiffs is found to be devoid of merit and same is liable to be dismissed as no substantial question of law arises out of the concurrent rejection of the present suit of pre-emption by the courts below and is hereby dismissed. Copy of the order be sent to the parties concerned forthwith.