Divatia, J. - (1.) THIS is an appeal by the plaintiff in a suit for a declaration that he has, as the owner of the house adjoining the suit house, a better right to buy it than the defendant who purchased it from its owner for Rs. 13,101. The plaintiff's house is situated to the south of the suit house while the defendant's house is to its north. Originally the plaintiff's house as well as the suit house belonged to one Ambalal Shivlal. The latter sold both the houses to Devshankar at different dates. Thereafter Devshankar's grandson Hariprasad Somnath sold the suit house to the original defendant, who is now dead, in 1935. The defendant had purchased his own house to the north of the suit house in 1919 from a stranger. The sale-deed of the suit house in the defendant's favour was passed on May 23, 1935, and the plaintiff's case in substance was that on that date he was at a place called Ghodasar at some distance from Ahmedabad where the suit house is situated. He was the karbhari of the Thakor Saheb of Ghodasar. He had occasion to come to Ahmedabad on May 26, which was a Sunday, for bringing some money of the Thakor Saheb to Ahmedabad where he had to make payments to certain persons. On arrival there at about twelve o'clock he went to the house of a friend in the neighbourhood named Hariprasad Vaidya and there he learnt from one Jamnadas, a common acquaintance of his and Hariprasad, that the suit house was sold by its owner Hariprasad Somnath to the defendant. The plaintiff says that immediately on coming to know of it he there and then expressed his desire to purchase the suit house in the presence of several persons who were present in Hariprasad Vaidya's house, and on returning to his home, which is situated almost opposite to Hariprasad Vaidya's house, he called two pleaders and the witness Laxman Dudhia, and in their company went to the suit house and made the demand for purchasing it. The purchaser, however, was not in that house and he was in his shop nearby, whereupon they all went to the shop and the plaintiff informed him in the company of the witnesses that he had come to know of the sale of the suit house, and as soon as he came to know he expressed his desire to purchase it and he was prepared to pay him the price which he had paid to the owner as he wished to exercise his right of pre-emption for the house.
(2.) UNDER the Mahomedan law of pre-emption, which admittedly governs the parties in this case and which applies to the Hindus in the city of Ahmedabad, it is necessary that a pre-emptor should make demands known as talabs. The first talab is called talab-i-mowashibat, and the second, talab-i-ishad. For performing the first talab it is necessary that the shaft or pre-emptor must declare his intention to assert his right as pre-emptor immediately on receiving information of the sale. It is not necessary that he must do so in the presence of any witnesses, nor is it necessary that he must make any offer or tender the price at that stage. Wherever he is, as soon as he comes to know of the sale either by oral intimation or by a letter, he must express his desire to claim his right of pre-emption even though nobody may be present at that time. For the talab-i-ishad, it is necessary that, with the least practicable delay after the first talab is made, the pre-emptor should make the second talab in which he must expressly refer to the fact that the first talab had been made and he must make a formal demand either in the presence of the buyer or the seller or on the premises and in the presence of at least two witnesses. The plaintiff's case is that he has complied with both these formalities. The first demand, according to him, was made as soon as he came to know of the sale for the first time in Hariprasad Vaidya's house at about noon on the 26th, and immediately thereafter the second talab was made along with his witnesses before the purchaser, i.e. the defendant, where reference was made to the first talab and the plaintiff expressed his readiness to pay the price which the defendant had paid to his vendor. The plaintiff's case is that as between him and the defendant, who are both neighbours on two opposite sides of the suit house, the plaintiff has got a preferential right of pre-emption because by virtue of the ownership of his house he has got certain rights of easement over the suit house. Those rights are (1) the right of way over the khadki of the suit house, (2) the eaves of the suit house fall into the plaintiff's chowk, (3) the windows of the suit house on the two floors overlook the plaintiff's chowk, (4) the drain water of the plaintiff's house passes through the khadki of the suit house, (5) the plaintiff has on the suit khadki a chokdi and a water pipe of his house, and lastly (6) there is a joint wall between the plaintiff's house and the suit house up to the plaintiff's chowk. It is common ground that under the Mahomedan law a person, who is a participator in immunities and appendages, such as a right of way or a right to discharge water, has got a preferential right to another person who may simply be an owner of the adjoining property without having any easement rights over the suit property. The plaintiff's case, therefore, is that he is entitled to a preferential right, and that, his right does not simply extend to half of the suit property which would be the case if he were a mere neighbour, but to the whole of it by virtue of the rights of easement which he possesses. The heirs of the defendant, who have been brought on the record after the death of the defendant during the pendency of the suit, deny all the allegations in the plaint. Their case is that none of the two talabs or demands had been made by the plaintiff, that the plaintiff's case that he came to know of the sale for the first time on the 26th was not true, that his case that as soon as he came to know of the sale on the 26th at Hariprasad Vaidya's house, he expressed his desire to assert his right as a pre-emptor was also not correct and that the further allegation that he' performed the second talab in the presence of witnesses was also not true. It is important to note in this connection that in his notice to the defendant which he gave on July 9, 1935, i.e. about six weeks after the sale, the plaintiff had stated that the defendant had purchased the suit house for Rs. 13,101 and that when he came to know of that on the 26th, he, in the exercise of his tight of pre-emption, performed all the legal formalities both the times in the presence of sufficient number of witnesses and at both the times went with the amount to show that he was prepared to purchase the suit house. The defendant in his reply to the plaintiff's notice stated that he did not accept the plaintiff's statement that he had performed both the formalities in the presence of witnesses as required and declared on both occasions his intention to purchase the property for the full consideration after performing all the legal formalities
(3.) UPON these pleadings the material issues contested between the parties were as to whether the plaintiff proved that he was entitled to pre-empt and that he had a preferential right to pre-emption, and, secondly, if the plaintiff was entitled to pre-empt, did he prove that he performed the requisite formalities in time ? The learned Judge found on those two issues that the plaintiff was entitled to pre-empt but that it was not necessary to decide whether he had a preferential right to pre-emption because of his finding on. the other issue, namely, that the plaintiff had not performed the requisite formalities in time. The requisite formalities consisted in the making of the first and the second talabs. But with regard to the second talab the learned Judge observes that it was not seriously disputed by the defendants that the plaintiff had performed the second talab, and he also held that the plaintiff did perform it. The dispute, according to the learned Judge, centred round the first talab. Now, as I said before, the plaintiff's case was that he did not know of the sale till the noon of the 26th when he returned to Ahmedabad. His son Hariprasad was in Ahmedabad and working in a mill. He also did not know about the sale and therefore did not inform the plaintiff. But as the plaintiff wanted to enquire from Hariprasad Vaidya about the whereabouts ?of a certain Swami, whom the plaintiff wanted to see, he went to Hariprasad Vaidya's house to enquire about it. There were some persons in his house at that time. One was Jamnadas whom the plaintiff knew before. Another was one Ambalal and there was also one Chimanlal. When he went up to Vaidya's house and enquired about the whereabouts of the Swami, Jamnadas informed him about the sale of the suit house to the. defendant Thereupon the plaintiff said that as a neighbour it was his first right to take the house and he expressed his desire to buy it at the price paid by the defendant. He says that he repeated three times that he would buy the house. While returning home he informed a pleader Mr. R.P. Swaminarayan who is living in the neighbourhood of Vaidya's house and asked Mr. Swaminarayan to accompany him to the defendant's house for making the second demand. The plaintiff says that he also sent for another pleader Mr. Ramprasad Lakhia. Thereafter he also sent for the witness Laxman Dudhia, who is living opposite the plaintiff's house. Thus in company of the two pleaders and the witness Laxman Dudhia and also Hariprasad Vaidya the plaintiff went to see the defendant at the suit house. But as the party did not find him there, they went to the defendant's shop at Shawka's Wadi which was nearby. They found the defendant and his two sons there and the plaintiff told them that he had declared his intention to pre-empt the house as soon as he learnt of the sale and in the presence of witnesses, that he expressed his intention to buy it at the price paid by the defendant and requested him to pass a sale-deed accordingly. The plaintiff's case is that the defendant then replied to him that his vendor had asked him not to sell the house to the plaintiff, but that the defendant did not want to fight with the plaintiff and requested him to wait for some time. Thereafter, the plaintiff returned home, and ate the defendant did not do anything in the matter, the plaintiff gave him the notice and then filed the present suit.;