Decided on September 05,1949

Jaganath Rughanath Appellant
Chhod Chansiram And Anr. Respondents

Referred Judgements :-



Rege, J. - (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:
The right of Shaffa (preemption) is but a feeble right as it is the disseizing of another of his property merely to prevent apprehended in -conveniences; (Mulla's Muhammadan Law Edn. 11, p. 196); and it has been held that there must be clear proof of the observance of formalities prescribed; Nabinchandra v. Rajanichandra, 63 I.C. 196 :, A.I.R. 1921 Cal. 162. It is true that the two demands may in certain circumstances be combined; Mt. Nathu v. Shadi, 37 ALL. 522 :, A.I.R. 1915 ALL. 294, and Ahmad Hakimullah v. Md. Hikmatullah : 49 ALL. 885 A.I.R. 1927 ALL. 289; but in the latter case the correct principle, I respectfully think is stated at page 387 viz., that when a second demand is made after invoking witnesses, a mention of the first demand is necessary in order to inform the vendee that it was properly made as required by law.

A Full Bench of four Judges of the Calcutta High Court held in Rujjabali v. Chundi Churan 17 cal. 543 that:

When a person claiming a right of pre -emption has performed the talb -i -mawasibat in the presence of witnesses, but not In the presence either of the seller or of the purchaser, or on the premises, it is necessary that when performing the talb -i -ishad he should declare that he has made the talb -i -maivasibat, and at the same time should invoke witnesses to attest it.

Judged in this light, there is no proof of the Plaintiff having affirmed in presence of the vendor and the witnesses that he had made a talb -i -mawasibat and the combination of the demands even if it were justified in this case does not help the Plaintiff.

(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.

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