Decided on May 14,1900

AJAIB ALI KHAN Respondents


Henderson and Burkitt, JJ - (1.) These second appeals, No. 631 of 1897 and No. 687 of 1897, have been heard together.
(2.) The facts are very simple. One Amirullah, who was the owner of one of four adjacent houses, on the 17 May 1895, by a registered contract of sale, sold that house to Ajaib Ali, the respondent in this appeal, for Rs. 84 for the site, and a further sum for the buildings, to be ascertained by carpenters or masons to be appointed by the vendor and vendee, it being stipulated that upon the additional sum being ascertained and paid, possession of the house should be made over within ten days.
(3.) On the 14 July 1896, Abrar Husain, the owner of the remaining three houses, sold them to his wife, Najm-un-nissa, the present appellant. It so happened that Amirullah did not carry out the terms of his contract with Ajaib Ali, refusing to join in appointing carpenters or masons to ascertain the price of the buildings, and the latter found it necessary to institute a suit for specific performance of the contract, and eventually obtained a decree on the 15 May 1896, whereby, inter alia, it was directed that the parties to the suit should within a month join in nominating four carpenters or masons to ascertain the value of the buildings, and that in default of their so doing, the Court Amin should ascertain the value. The parties did not carry out the first direction, and the Amin subsequently made an inquiry and ascertained the value to be Rs. 111-8-0. This sum Ajaib Ali paid on the 15 August 1896, and thereafter, on the 6 September 1896, he obtained possession under the decree. Neither the contract of the 17 May 1895 nor the decree in the suit for specific performance are upon the record, but the facts, as above stated, are admitted. 3. Najm-un-nissa and Ajaib Ali have now each sued the other, each claiming to have a right of pre-emption against the other. Both suits were filed on the 22 February, 1897. Najm-un-nissa in her suit alleged that the proprietary right or ownership in the house purchased by Ajaib did not pass to him on the execution of the contract of the 17 May 1895; and that on the date of her purchase, namely, on the 14 July 1896, he was not the owner, and in fact did not, according to Muhammadan law, become the owner until the 6 September 1896, when he got possession, and she claimed that her right of pre-emption against him then arose.;

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