LAWS(MPH)-1949-9-1

JAGANATH RUGHANATH Vs. CHHOD CHANSIRAM AND ANR.

Decided On September 05, 1949
Jaganath Rughanath Appellant
V/S
Chhod Chansiram And Anr. Respondents

JUDGEMENT

(1.) THIS is Defendant's appeal in a suit for pre -emption. Ganpat, son of Chotu, sold the house in suit to the Appellant, Jaganath. Ranchhod claimed She right of pre emption in suit No. 38/1946 -47 in the Court of the Munsif, Dhar, alleging in (Para. 4 of the plaint) that as soon as he heard of the sale, he declared his intention to pre -empt and informed the vendor that he wanted to exercise his right. In Para 6 of the plaint, he averred that he wont with two witnesses to the vendor with Rs. 600 but the latter refused the offer. In Para 9, he stated that on the vendor's refusal to convey the property to him, he convened a Panchayat wherein the vendor said that the house had in fact been sold for Rs. 500 but the purchaser Jaganath wanted it to appear that the price was Rs. 1000, and further the vendor said that if Jaganath agreed, he would convey the house to the preemptor i.e. the Plaintiff. The Defendants denied the allegations of the declaration referred to in Para. 4 of the plaint as also in Para. 6. They admitted the Panchayat but not the allegations regarding the admission of the vendor that the price was Rs. 500. The suit was dismissed by the learned Munsif. An appeal was taken to the District Judge, Dhar, who held that both the Plaintiff and the Defendant Jaganath had a right to pre -empt and modifying the decree directed that 3 1/2 chasmas of the house adjoining the Plaintiff's wall to the north, should be sold by the Defendant Jaganath to the Plaintiff. The Defendant Jaganath has come up in second appeal.

(2.) THE only question canvassed at the Bar is whether the formalities of the demand for preemption were observed by the Plaintiff. It is necessary that there should be a Talb -i -mawasibat (immediate demand) followed by a Talb -i -Ishhad (demand with invocation of witnesses). The Plaintiff's case as stated in the plaint was that the immediate demand was under circumstances stated in Para. 4 viz., that a declaration was made to the vendor immediately this it is conceded by the learned Counsel for the Plaintiff has not been proved. The second demand according to the plaint was in presence of two witnesses. The issues as framed leave no room for any inference other than that these were the formal demands according to the Plaintiff. On the want of proof of the alleged immediate demand, it is now urged that the second demand as put in the plaint may be deemed to be a combination of the two ; and, in the alternative, it may be considered to be the first (immediate) demand and happenings at the Panchayat, the second. It was frankly conceded that there was recognition of the right of preemption amongst the Hindus too in Dhar until August 1917 and all the formalities prescribed by Muhammadan law had to be observed under that law. The right of pre -emption is in derogation of the common law and even where it is recognised, it is admisericordian. The 'Hedya' states that:

(3.) THE Panchayat, the proceedings in which the Respondents learned Counsel urges should be construed as the second demand was on the averment in Para 9 of the plaint convened with a view to complain of the sale to Jagganath and the emphasis in the plea in Para 9 is not on the demand but on the fraud alleged to have been intended by Jagganath in that he wanted the price to be shown as Rs. 1000 where it was actually Rs. 500 only. The evidence of some witnesses was referred to by Mr. Pradhan to show that words were used by the Plaintiff at the Panchayat which would infer his demand of pre -emption but the Plaintiff cannot be allowed to piece up a case from evidence which was not even suggested in the pleadings and which the Defendant had not the opportunity of meeting, the more so as the burden of asserting and proving that the formalities had been complied with lay heavily on the Plaintiff. There is no evidence of the first demand (Talb -i -mawasibat) having) been even referred to in the Panchayat.