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Akbar Ali and anr. Vs. Ambalal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal Nos. 351 and 352 of 1972
Judge
Reported inAIR1982Raj263; 1982()WLN169
ActsRajasthan Pre-emption Act, 1966 - Sections 5(1) and 6(1)
AppellantAkbar Ali and anr.
RespondentAmbalal and ors.
Appellant Advocate M.C. Bhandari, Adv.
Respondent Advocate M.L. Panwar, Adv.
DispositionAppeals allowed
Excerpt:
rajasthan preemption act, 1966 - section 6(1)(ii)--preemption--public lane open to all--no common right to house owners--held, section 6 1)(ii) is not attracted and right of preemption cannot be claimed;there is a public lane open to all and sundry and to such a public lane, it cannot be said that the house owners have got a common right of way, as envisaged under clause (ii). it appears that clause (ii) of sub-section (1) of section 6 of the act can be attracted only when the two properties have the things in common, as stated under clause (ii) of sub-section (1) of sec 6 of the act. if the lane serves a common right of way and entrance to the plaintiffs' house as well as the properties sold, in my opinion, it cannot be made the basis for claiming any right of preemption under clause..........is that the properties of the parties situate in one 'gali' and a common 'chowk' and they have common right of way and a common entrance. defendant no. 3 dhuraji also owns a house property in the same lane. the lane in which the properties of the parties and the three temples are situated, is a closed or blind lane towards north. the defendants denied the plaintiffs' right of pre-emption. the defendants also claimed easementary right over the transferred properties, so they claimed a preferential right of pre-emption.3. necessary issues were framed and after trial, the learned civil judge, pratapgarh, decreed both the suits on august 10, 1971. the transferee-defendants preferred an appeal against the judgment and decrees of the trial court, but they were unsuccessful. hence they.....
Judgment:

M.C. Jain, J.

1. The above two appeals raise common questions of law, so they are being disposed of by thts common judgment.

2. Both these appeals have been filed by the defendant-transferees of properties in suits for pre-emption, being unsuccessful in both the courts below, as the suits for pre-emption have been decreed by both the courts. The plaintiffs Ambalal and Heeralal instituted suits for pre-emption in respect of two immovable properties described in paras 2 of the plaints. In Civil Appeal No. 351/72, the property transferred consists of one 'Talia' and one 'Otla'. These immovable properties were sold by defendant No. 1 Dadamchand to the appellant Akbar Ali on 4-12-1967 for a sum of Rs. 1,000/- and in appeal No. 352/72 Dadamchand sold one house property for a sum of Rs. 500/- on 18-12-1967 to Mulla Abbas Bhai. The ground of pre-emption, as alleged by the plaintiffs in both the suits, is that the properties of the parties situate in one 'Gali' and a common 'Chowk' and they have common right of way and a common entrance. Defendant No. 3 Dhuraji also owns a house property in the same lane. The lane in which the properties of the parties and the three temples are situated, is a closed or blind lane towards north. The defendants denied the plaintiffs' right of pre-emption. The defendants also claimed easementary right over the transferred properties, so they claimed a preferential right of pre-emption.

3. Necessary issues were framed and after trial, the learned Civil Judge, Pratapgarh, decreed both the suits on August 10, 1971. The transferee-defendants preferred an appeal against the judgment and decrees of the trial court, but they were unsuccessful. Hence they preferred these second appeals.

4. I have heard Shri M.C. Bhandari, learned counsel for the defendant-appellants and Shri M.L. Panwar, learned counsel for the plaintiff-respondents in both the appeals.

5. The only controversy, which arises in these appeals, is as to whether Clause (ii) of Sub-section (1) of Section 6 of the Rajasthan Pre-emption Act, 1966 (hereinafter referred to as 'the Act') can be made applicable to the facts of the present cases? Sub-section (1) of Section 6 of the Act reads as under:--

'Section 6.-- Persons 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, following classes of persons, namely:--

(i) co-sharers of or partners in the property transferred,

(ii) owners of other immovable property with a staircase or an entrance or other right or amenity common to such other property and the properly transferred, and

(iii) owners of property servient or dominant to the property transferred.

6. Before considering whether Clause (ii) of Sub-section (1) of Section 6 of the Act is at all attracted or not, it would be proper to refer to the admitted factual situation of the properties of the parties in these cases. There is a lane known as 'Devare-ki-Gali'. which opens on Sadar road Salampure towards south. While entering in the lane, towards the west, there is a house property of the plaintiff Ambalal and Heeralal and in front of their house, there is a temple of 'Suthars'. Adjoining the temple of 'Suthars', there is a house of Dhuraji, defendant No. 3. Thereafter towards the east of the lane, there is a temple of 'Bhoruji and on the eastern and the northern side of the Bhoruji temple, there is the property of defendant No. 1 Dadamchand. On the western side of the lane, beyond the house of the plaintiffs, there is a 'Deora' of Deonarain. Beyond the 'Deora' of Deonarain, there is an open piece of land belonging to Dadamchand and on the western side of this open land, there is a 'Chabutara' of Dadamchand. This open land and the 'Chabutara' described as Otla by the plaintiffs in the plaint, have been sold to Akbar Ali and Dadamchand has sold one room and one 'Ori' and 'Padsal' to Mulla Abbas Bhai. As per the statement of the plaintiff himself, people of 'Suthar', 'Hewasi' and other communities visit the temples situated in this lane. Thus, it would appear that at the opening of the lane, the plaintiffs' property is situated on the western side and Dadamchand's property, which he has retained and which he has sold, is situated at the end of the lane, both on the eastern side as well as on the western side and the platform or 'Chabutara' is situated at the end of the lane. TheProperties of the plaintiffs as well as of the defendant Dadamchand have access through this common lane and the 'Chowk' and the inhabitants of these properties have egress and ingress through the lane.

7. The question which arises for consideration is as to whether in such a situation, Clause (ii) of Sub-section (1) of Section 6 of the Act is at all attracted or as to whether the plaintiffs' case is covered under Clause (ii'of Sub-section (1) of Section 6? A perusal of Sub-section (1) of Section 6 of the Act would make it clear that the right of pre-emption shall accrue to owners of other immovable property with a staircase or an entrance Or other right or amenity common to such other properly and the property transferred, that is, the two properties either have a common staircase or a common entrance Or some other common right or common amenity. If the two properties do not have any such common staircase, common entrance or some other common right or amenity, then the owners of other immovable properties will have no right of pre-emption. In these cases, the plaintiffs have tried to cover their case under Clause (ii) of subsection (1) of Section 6 of the Act by pleading that their property and the property transferred have a common entrance and a common right of way and on that basis they have got a right of pre-emption. It may be mentioned that that there is no common entrance. The lane opens on the Sadar road Salampura. Not only the property of the plaintiffs and that of the defendant No. 1 Dadamchand has access through this lane, but the visitors of the three temples as well as the other residents of this lane namely Dhuraji, defendant No, 3, has also an access through this lane. Thus, it appears that there is a public lane open to all and sundry and to such a public lane, it cannot be said that the house owners have got a common right of way, as envisaged under Clause (ii). It appears that Clause (ii) of Sub-section (1) of Section 6 of the Act can be attracted only when the two properties have the things in common, ag stated under Clause (ii) of Sub-section (1) of Section 6 of the Act. If the lane serves a common right of way and entrance to the plaintiffs' house as well as the properties sold, in my opinion, it cannot be made the basis for claiming any right of pre-emption under Clause (ii) of Sub-section (1) of Sec-tion 6 of the Act. If the interpretation, which has been placed on Clause (ii) of Sub-section (1) of Section 6 of the Act is taken to be correct, it would mean that all owners of house properties, which are sit uated in a blind lane, would claim a right of preemption on the basis that they have a common right of way Or common entrance. On that basis Dhuraji, defendant No. 3, can also claim right of pre-emption and the trustees of the temples can also claim the right of preemption. As a matter of fact, there is nothing common to the properties of the different owners situated in this lane and the properties transferred. All the house owners of the properties have undoubtedly a right of way through the lane, which is an open one towards the south. Thus, in my opinion, the plaintiffs' cases are not covered under Clause (iij of Sub-section (1} of Section 6 of the Act, so they cannot claim any right of pre-emption. The two suits appear to be misconceived claiming the right of pre-emption under Clause (ii) of Subsection (1) of Section 6 of the Act. in this view of the matter, both the appeals deserve to be allowed and the plaintiffs have to be non-suited and their suits are liable to be dismissed.

8. Another argument advanced by Shri Bhandari, learned counsel for the appellants, is based on the provision contained in Section 5 (1) (c) of the Act and it was urged by him that the plaintiffs have no right of pre-emption in view of the fact that the appellants too have a right of pre-emption, as they have got some easementary right over the properties transferred in favour of them. This argument is devoid of merit. According to the provision contained in Section 5 (1) (c) of the Act, the right of pre-emption shall not accrue to any person who has an equal or inferior right of pre-emption. It does not say that even if one has got a superior right, still right of pre-emption will not accrue to him. If the plaintiffs' case would have fallen under Clause (ii) of Sub-section (1) of Section 6 of the Act, then the plaintiffs would have excluded the transferees, as they would have fallen in the third class of persons, as stated under Clause (iii) of Sub-section (1) of Section 6 of the Act and the plaintiffs would have superior right of pre-emption as against the transferee-appellants. So this argument is noi available to the appellants. How-ever, I have already held that the plaintiffs' cases do not fall in the second class of persons or their claim is not covered under Clause (ii) of Sub-section (1) of Section 6 of the Act, so no right of preemption shall accrue to them.

9. No other point has been pressed before me in these appeals.

10. In the result, both the appeals are allowed, the judgment and the decree of the first appellate court in both the appeals are set aside and the plaintiffs suits for pre-emption are dismissed. However, in the circumstances of the case, the parties of both the appeals shall bear their own costs throughout.


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