Decided on February 29,1952



Sharma, J. - (1.)THIS is a second appeal by the defendant in a suit for pre-emption.
(2.)THE plaintiff, Mst. Sunder Bai, alleged in the plaint that she was the owner of a certain property shown in the plan filed by her in red colour, and that she being a shafai-i khalit was entitled to the pre-emption of the property shown in yellow colour and marked B in the said plan, which was purchased by Gafoor from Ganga Sahai, defendant No. 1.
The defendants contended that the plaintiff had no right of pre-emp-tion, and it was found by the first court that she had no such right, and her suit was dismissed. On appeal, the District Judge, Jaipur City, however, reversed the decree of the first court, and decreed the suit on pay-ment of Rs. 300/- within one month from the date, of decision. The vendee, Gafoor" filed a second appeal in the former Jaipur High Court and a point was raised on his behalf that according to the plaintiff's own plan, there was a gully intervening between property A, claimed by the plaintiff to be her own, and the property B, which was the subject-matter of pre-emption. The plaintiff could not, therefore, be said to be the owner of adjoining immovable property (shafai-i-jar) and, therefore, her suit was not rightly decreed. The learned Judges of the former Jaipur High Court, who heard the case remitted an issue to the first court whether there was any intervening gully between the two properties. The learned Munsif recorded the evidence, and has sent his finding to this Court that there was a public street intervening between the two properties. Objection to this finding was taken on behalf of the plaintiff.

I have heard the learned counsel for both the parties. It was argued by the learned counsel for the appellant that it was fully proved not only by the oral evidence of Gafoor, Ram-chander, Bhanwarlal, Suraj Narain, and Raghunath that there was a gully intervening between the two properties, and that it was public property, but also by the plan produced by the plaintiff herself in which the gully is shown between the two properties. It was argued that the decree for pre-emption was not given either on the ground of the plaintiff being a co-sharer in the property sold, or on the ground of participator in immunities and appendages, such as a right of way or a right to discharge water, but on the ground of the plaintiff being the owner of adjoining immovable property (shafai-i-jar), As it was proved that there was a public lane intervening between the two properties, the property under pre-emption could not be said to be adjoining the property A on the strength of which the plaintiff claimed pre-emption.

On behalf of the respondent it was argued that in the first instance it was not proved that there was any gully intervening between the two properties, and that it was public property, but even if there was any such gully it would not defeat the plaintiff's right of pre-emption. It is not necessary that the property on the strength of which pre-emption is claimed should abut the property under pre-emption. The only thing that is required is that the plaintiff's property should be in the neighbourhood of the property under pre-emption. The fact that there was a gully of about 4-1/2' between the two properties did not take away from the character of the plaintiff's property being contiguous to the properties under pre-emption. Reliance for this was placed upon Ralia Ram vs. Kalian Khan (1886 P. R. 108), Aziz Ahrmad vs. Nazir Ahmad and others (A. I. R. 1927 Allahabad 504), and Kathalaya's Law of Pre-emption, 1928 Edition, P. 84.

On behalf of the appellants, it was urged that the rulings cited by the learned counsel for the respondent did not apply to the facts of the present case, and that according to almost every important commentary on Mohamedan Law, the right of pre-emption on the ground of contiguity can be defeated if the vendor keeps to himself a small place of land adjacent to the plaintiff's property out of the property sold. A ruling of the late Punjab Chief Court reported in Mahtab Singh vs. Niaz Ali (1907 P. R. 47) was relied upon.

On a reading of the evidence on record, and perusing the plan filed by the plaintiff, I am in entire agreement with the learned Munsif that it has been established that there was a piece of land 4-1/2' wide between the plaintiff's property A and the property under pre-emption B. It is also proved by the plaintiff's evidence that this land, i. e. , gully, is public property. The oral evidence produced by the defendant-appellant is much weightier than the evidence produced by the plaintiff, and it is supported by the plan, Ex. 6, produced by the plaintiff herself. There can, therefore, be no doubt that the plaintiff's property, on the strength of which she is claiming pre-emption, and the property B, which is the subject-matter of pre-emption are not adjacent to each other. The other question is whether the existence of this lane would defeat the right of the plaintiff to pre-empt the property in dispute. The rulings, which have been cited on behalf of the respondent, do not, to my mind, apply to the facts of the present case. In 1886 P. R. 108, the plaintiff claimed pre-emption under the customary law of Punjab, and it was held that according to that custom, the plaintiff, whose property was divided by a narrow lane from the property under pre-emption, and whose front door was almost opposite to the front door of that property, was entitled to pre-emption. In this case the plaintiff has not based her case upon any custom, according to which she could pre-empt the property, even though it was separated from her property by a lane about 4-1/2' wide. The Allahabad case reported in A. I. R. 1927 Allahabad 504 is also distinguishable, because in that case pre-emption was claimed of a piece of land belonging to two persons, and through the middle of which passed a kachha public road. The land of that road was held to be a part of the plot owned by both the persons. It was held that the plaintiff was entitled to the pre-emption of the entire plot of land, and not only to that portion of it which abutted the land of the plaintiff. In that case, the land of the plaintiff was not separated from the land under pre-emption by any other land. Both the rulings, therefore, obviously do not help the plaintiff. As regards the passage in Kathalay's Law of Pre-emption, 1928 Edition, page 84, that too does not help the respondent, because according to that passage the existence of a private road belonging to either the vendor or the pre-emptor or both did not take away from the plaintiff's right of pre-emption. In the present case, there is nothing to show that the gully belonged either to the pre-emptor or to the vendor or both.

Coming to the law placed by the learned counsel for the appellants, I find in Mulla's Mohamedan Law, 1950 Edition, page 228, that "when it is apprehended that a claim for pre-emption may be advanced by a neighbour, the vendor may sell the whole of his property excluding a portion, however small, immediately bordering on the neighbour's property, and thus defeat the neighbour's right of pre-emption. " In Wilson's Anglo-Muham-madan Law, 1930 Edition, page 416, it is given in Art. 391 that - "the prd-emption right of a neighbour, though not that of a co-sharer or participator in the appendages, may be defeated by the vendor reserving to himself a strip, however narrow, of the land or house as the case may be, contiguous to that owned by the neighbour in question. " In Agrawala's Law of Pre-emption, 1931 Edition, page 168, it is given in Art. 151 (f) that - "when a man sells his mansion, excepting the breadth of a cubit along the boundary of the pre-emptor, the latter has no right of pre-emption, because his neighbourhood is cut off; and this is a device by which his right may be evaded. " In the Digest of Mohamedan Law by Hanifee, 1865 Edition, page 504, it is given that - "a mouza, or place in a mansion, may be separated and marked off with a line, and bestowed by way of sudukah (charity), or of gift, with its right of way, and then the remainder of it sold, by which means the right of the pre-emptor is evaded. The marking off or circumscribing is to prevent the gift from being the gift of a moosha, or undivided share, in property that is susceptible of division; and the right of pre-emption is prevented by the purchaser's becoming a partner, and as such, having a preferable right to the neighbour's. It is made a condition that the sudukah, or gift of the mouza, should be made with its right of way, because, otherwise, the person in whose favour it is made would be only a neighbour to the purchased property, and as such have no preferential right over another neighbour. This device, it may be observed, is only proper for defeating the tight of a neighbour, not that of a neigh-

Thus it is quite clear that under the pure Mohamedan Law the plaintiff, in order to prove that she is shafai-i-khalit, must show that the property on the basis of which she claims pre-emption is adjacent to the property under pre-emption. If it is separated from it, the plaintiff cannot have a right of pre-emption on the ground of being a shufai-i-khalit. The learned counsel for the appellants has cited a case reported in Mahtub Singh vs. Niaz Ali (1907 P. R. 47 ). But it was a case based on the customary law of pre-emption in Punjab, and, therefore, the defendant-appellant too cannot derive any strength from that case just as the plaintiff cannot derive from the case cited on his behalf. It is enough to say that according to the general law of pre-emption, a plaintiff, in order to be a shafai-i-kahlit, should have his property adjacent to the property, which he claims by pre-emption. The decree of the lower court cannot, therefore, be supported. 10 The appal is allowed, the decree of the lower appellate court is set aside, and the suit is dismissed with costs to the appellant in all the courts. 11. The respondent prays for leave to appeal under sec. 15 of the Rajasthan High Court Ordinance to a Division Bench. Leave is granted. .

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