1. This is an appeal by one of the defts. against the appellate decree of the learned Ses. J. Rajasamand in a suit for pre-emption & arises under the following circumstances :
2. The pltf. Bhuralal filed a suit for pre-emption against the applt. Ambalal & Nanda resp. 2 for the pre-emption of a house belonging to Nanda resp. 2 situated in Mauza Giloond in the Ct. of the Dist. Munsiff Chittor at Kapasan. It was alleged that the plaintiff had his own house adjacent to the house in suit in which the drains of the plaintiff's house discharged water. At first it had been agreed between the pltf. & Nanda that the house would be sold to the pltf. But subsequently Nanda changed his mind & sold the house for an ostensible sum of Rs. 350-0-0 to Ambalal applt. on 6-8-1945. It was pleaded that the custom of pre-emption prevailed in the village Giloond & also that the real consideration was Rs. 300-0-0. The pltf. claimed pre-emption on the payment of the sum found due by the Ct. The deft. Nanda did not contest the suit but the applt. objected to it on the following grounds : (i) The pltf. had given his wrong parentage in the plaint & was not a resident of Giloond but of village Pachmata. (ii) The pltf. refused to purchase the house when offered to him & was therefore not entitled to pre-empt it. (iii) The pltf. was not entitled to bring a suit for pre-emption having alleged that an agreement of sale of the house in suit had been previously arrived at between him & Nanda. (iv) The applt. having been a mtgee. with possession of the house in suit foe about 40 years had a preferential right to purchase in (v) The suit for pre-emption had been brought mala fide.
3. The learned Munsif struck the following issues :
(i) Are the pltf. & deft. 3 (Nanda) co-sharers & residents of Guloond ?
(ii) Does the custom of pre-emption prevail in village Giloond ?
(iii) Did deft. 2 sell the house of the pltf.
(iv) Is the consideration of Rs. 350 fictitious ?
(v) Has the pltf. a preferential right of pre-emption against the deft. 1 (Ambalal) ?
(vi) To what relief is the pltf. entitled ?
4. The learned Munsiff gave his findings on all the issues excepting no, 4 in favour of the pltf. & consequently decreed the suit on payment of Rs. 850-0-0. Against this decree the applt. went in appeal & the learned Dist. J. Rajasamand who heard it confirmed the decree of the first Ct. & dismissed the appeal. The deft. Ambalal has came in appeal to this Court.
5. Four points were urged in this appeal.
(i) It was not proved that the custom of pre-emption prevailed in the village Giloond.
(ii) The pltf. having not set up any claim previous to the suit, the suit was not maintainable.
(iii) The pltf. not being the resident of mauza Giloond was not entitled to pre-emption of the house in suit.
(iv) The applt. having spent a good deal of money over repairs ought to get the coat of repairs.
6. I may say at the outset that the points Nos. 2 & 4 were not taken in a written statement by the applt. If he wanted to contest the suit on these grounds it was his duty to have taken them in his written statement. This he did not do & consequently no issues were framed thereon. He did not set up these pleas even in his grounds of appeal before the learned appellate Ct. I cannot allow him to base his appeal on these grounds under the circumstances of the case & they are consequently rejected.
7. As regards the point No. 1 it has been proved by the evidance led by the pltf. that the custom of pre-emption prevailed in Mauza Giloond. It is also supported by a judgment of the final Ct. of Appeal Mewar in Appeal no. 3 of 2000, Vishnulal v. Fazal Hussain, dated 18 April 1945, produced by both the parties that the custom of pre-emption prevailed in the whole of Mewar. Under these circumstances the lower Cts. were perfectly justified in holding that the custom of pre-emption obtained in Giloond which is in Mewar.
8. As regards point No. 3 it has been proved that the pltf. has his house adjacent in the house in dispute & that the eaves of the pltf's house discharge water in the house in dispute. He is, therefore, both a Shafee Jar & Shafee Khalit. The law of pre-emption does not lay down that a pre-emptor should also be resident of the place where the property Bought to be pre-empted is situated. This ground too has no force.
9. The appeal is dismissed with costs to the contesting resps.