JUDGMENT
Goyal, J.
1. The fact in brief giving rise to this civil miscellaneous appeal are that the plaintiff-appellants and proforma respondents No. 7 to 11 filed a suit for pre-emption and permanent injunction with an application making a prayer for temporary injunction, with the averments that late Raja Laxman Singhji sold Plot No. C-1 on 8.3.1957 to one Kamal Singh and sold Plot No. C-2 on 11.2.1957 to one Smt. Prem Kumari. Smt. Prem Kumari sold this plot on 14.5.1962 to Kallimullah. Thereafter, the plaintiffs purchased this plot vide registered sale deed dated 12.7.2000 from the legal heirs of Kallimullah. The defendant-respondent Nos. 1 to 5 sold the plot No. C-1 to the defendant-respondent No. 6 Vide two registered sale deeds dated 11.7.2002 and 18.7.2002.
2. The plaintiffs have there windows, Roshandan and Nalas towards Plot No. C-1 and there is a common way of both Plot No. C-1 and No. C-2. Plot No. C-1 was lying vacant. The legal representatives of late Kallimullah were enjoying easementary rights for last forty years over Plot No. C-1 and the facilities of both the plots were common. Hence, the plaintiffs got the right of pre-emption under Section 6 of the Rajasthan Pre-emption Act, 1966 (in short ‘the Act of 1966’). The defendants did not give any prior notice to the plaintiff with regard to sale of Plot No. C-1. Now, the defendant No. 6 is bent upon raising construction on this plot without any right as the plaintiffs have got their right of pre-emption as well as easementary rights. It was, therefore, prayed that the defendants may be restrained from alienating this property in question and not to raise any construction, whatsoever, upon Plot No. C-1.
3. Defendant No. 6 submitted written statement and denied the averments with regard to pre-emption and easementary rights. It was pleaded that there is no common way and the plaintiffs raised some constructions over Plot No. C-2 after 12.7.2000. The remaining defendants also submitted their written statement.
4. Learned Additional District Judge No. 9, Jaipur City, Jaipur, having heard learned counsel for the parties, came to the conclusion that no prime facie case with regard to the easement as well as pre-emption is made out in favour of the plaintiff, hence, the application under Order 39 Rules 1 and 2 CPC was dismissed. Hence, this appeal.
5. Learned counsel for the plaintiff – appellants submitted that the learned Trial Judge while deciding application under Order 39 Rules 1 and 2 CPC made such observations as if the suit itself was being decided, which was not permissible. Reliance is placed upon Tejkaran v. Sushil Kumar (1), wherein it was held that the courts are required to keep in view that where some right is claimed, the parties should not be allowed to diminish existence of such rights till final decision of the dispute. In the instant case, the learned Trial Judge in no way has decided the suit finally i.e. in other words, rights of the parties have not been finally decided but it was necessary for the trial court while considering the application for temporary injunction as to whether a prima facie case is made out or not, to grant the relief prayed for and for that purpose, appreciation of material on record was essential as in absence of that, it could not be possible for the trial court to arrive at the conclusion as to whether any prima facie case is made out or not.
6. Learned counsel for the plaintiff-appellants next submitted that objections with regard to the report of the local Commissioner were not considered. This contention also is not acceptable. Learned Trial Judge has observed that the objections to the report of the local Commissioner were made in writing but it was not specified as to what wrong facts have been mentioned in the report of the local Commissioner. According to the learned counsel for the plaintiff-appellants, the local Commissioner appointed by the court inspected the site and prepared the report but he instead of submitting that report, submitted another report in the Court. According to the learned counsel, at the time when the local Commissioner inspected the site, construction work was going on but this fact was not mentioned in the report submitted before the trial Court. Assuming that construction over Plot No. C-1 was going on behalf of the defendant-respondent No. 6 when the site was inspected by the local Commissioner, it would not make any difference as far as the point of prima facie case is concerned. At the most, the construction work going on at the time of inspection of the site by the local Commissioner, may be used as a piece of evidence to show on behalf of the plaintiff- appellants that in spite of status quo order, construction work was going on.
7. It was next submitted by the learned counsel for the plaintiff-appellants that there is a common way for these two plots and the plaintiff-appellants were enjoying easementary rights over Plot No. C-2 and in case the respondent-defendant No. 6 is not restrained the very purpose of filing the suit would stand frustrated. He placed reliance on Peer Gulam Naseer v. Peer Gulam Jelanee (2), wherein it was held that where prima facie case is in favour of the plaintiff, application for temporary injunction should be allowed in the interest of justice.
8. Learned counsel for the respondent Nos. 1 to 6 submitted that Plot No. C-2 was sold five times earlier before it was purchased by the plaintiffs and the site plan of Plot No. C-2 shows that only one tin shed was existing near its boundary wall towards Plot No. C-3 and there was no construction on this plot towards Plot No. C-1. It was next argued that this colony was established by late Raja Laxman Singhji having a number of residential plots including Plot No. C-1 and C-2 and in front of these Plots, 30′ wide road was and is in existence and this is the road for approaching the entire plot’s of this colony as shown in site plan of this colony and thus, it is wrong to say that this road is only meant for these two plots and there is nothing common with these two plots, and the learned Trial Judge rightly came to the conclusion that no right of pre-emption as well as easement was made out in favour of the plaintiffs.
9. 1 have considered the rival submissions.
10. Sub-section (1) of Section 6 of the Act of 1966 is as under:-
“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, the following classes of persons, namely:-
(ii) owners of other immovable property with a stair case or an entrance or other right or amenity common to such other property and the property transferred, and
(iii) owners of property servant or dominant to the property transferred.”
11. A bare perusal of the provisions contained in Section 6(ii) goes to show that the right of pre-emption would accrue to the owners of other immovable property with a stair case or an entrance or other right or amenity common to such other property and the property transferred. In the instant case, no such prima facie case is made out in favour of the plaintiff-appellants and I find no ground to interfere with the conclusion arrived at by the learned Trial Judge.
12. As far as the second ground of right of pre-emption as contained in Section 6(iii) is concerned, the same has been declared unconstitutional by Hon’ble the Division Bench of this Court in Nen Mal v. Kan Mal (3).
13. With regard to the easementary rights, it was observed by the learned Trial Judge that the plaintiff while raising boundary wall after purchase of this Plot in the year 2000, opened windows, Roshandan etc. towards Plot No. C-1 and thus, they have no right of easement. Section 4 of the Indian Easements Act, 1882 (in short the ‘Easement Act’) defines “Easements” as under:
“4. “Easement.” An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in our open, or in respect of, certain other land not his own.
Dominant and servant heritages and owners
The land for the beneficial enjoyment of which the right exists is called to dominant heritage, and the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servant heritage, and the owner or occupier thereof the servant owner.
Explanation.–In the first and second clauses of this section, the expression “land” includes also things permanently attached to the earth; the expression “beneficial enjoyment” includes also possible convenience, remote advantage and even a mere amenity; and the expression “to do something” includes removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage, of any part of the soil of the servant heritage of anything growing of subsisting thereon.”
14. According to the case of the plaintiffs, they have got the easementary rights of light and air for last more than 20 years in accordance with Section 15 of the Easement Act and that further it is a case of easement of necessity as provided Under Section 13 of the Easements Act. Learned counsel for the respondents No. 1 to 6 submitted that the impugned order is in no way perverse.
15. I have considered the above submissions. According to Section 4 of the Easement Act, the land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritage, and the owner or occupier there of the servient owner. Learned Trial Judge rightly observe that no such case of easement is even prima facie made out in favour of the plaintiffs and 1 find no reason to interfere with the said findings of the learned Trial Judge.
16. Consequently, this miscellaneous appeal being devoid of merit, is hereby dismissed. Any observation made by this Court hereinabove would not be taken adverse on merits of the case during trial.