MUHAMMAD ASKARI Vs. RAHMATULLAH

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for preemption. The claim was originally based both on an alleged custom as well as the Mahomedan law. The claim, so far as the custom is concerned, was later on given up. The plaintiff's case was that as the owner of Lal Kothi in Saharanpur situated in the same compound as Malik Hotel, the property sold, he was entitled to pre-empt the sale. The property was sold ultimately under a sale-deed, dated the 22nd of March 1923, ostensibly for Rs. 8,000. The plaintiff alleged that the real sale consideration was only Rs. 5,220. Various defences were raised on behalf of the vendees. They pleaded that the plaintiff had no right of pre-emption under the Mahomedan Law inasmuch as the defendants themselves were co-sharers in the mahal in which the property was situated and were on equal footing with the plaintiff. They further pleaded that the property had in fact been sold on the 18 of March 1923 at a public auction and the plaintiff having had full knowledge of it had refused to purchase the property. It was also pleaded that no proper demands, as required by the Mahomedan Law, were made by the plaintiff and the suit was, therefore, not maintainable. The defendants stated that the true consideration was Rs. 8,000 as entered in the sale-deed.

(2.) The learned Subordinate Judge has found that the plaintiff has a right of pre- emption as against the vendees. He has further found that the true sale consideration was Rs, 5,220 and not Rs. 8,000 as entered in the sale-deed. But he has held that the sale took place under a public auction on the 18 of March 1923 and that the plaintiff did not offer any bids. He has also found that no demands were made at all and that in any case inasmuch as the second demand was made only to one of the vendees, it was not a proper and valid demand. The plaintiff has come up in appeal and the defendants have filed a cross-objection as to costs, The defendants have admitted the finding of the Court below that the real sale consideration was only Rs. 5,220 and not Rs. 8,000. It must, therefore, be accepted that the consideration entered in the sale-deed was inflated, (The judgment then considered the evidence and proceeded.) We therefore, find it impossible to hold that the auction sale actually took place in the presence of the plaintiff and that he failed to make any bid.

(3.) The claim being under the Mahomedan Law, the mere fact of a previous notice to the plaintiff that the property was going to be sold on the 18 of March 1923 cannot operate as an estoppel or deprive him of his right to claim pre-emption after the sale has actually taken place. Had he been actually present at the time and not made the talabs there and then, the position might have been different. As regards the question whether the plaintiff did in fact make the demands, there are certain circumstances to which the learned Subordinate Judge has not attached due weight. (The judgment then further discussed the evidence and found that the demands were made and all the formalities were observed.) The last point urged is that the demand made to only one of the three vendees was not sufficient. According to the defendants evidence the bid was made by Rahmat Ullah alone and it was he who made the cash payment. The sale deed, however, is in favour of Rahmat Ullah and his two brothers, but there is no specification of their shares though one may, in the absence of any evidence to the contrary, presume that they acquired the property in equal shares. In fact Rahmat Ullah in his deposition stated that his two brothers and he purchased the kothi in dispute in equal shares. It has not been suggested on behalf of the plaintiff that he made any second demand from the vendor, nor is it suggested that he made his second demand in the presence of the property sold. The plaintiff relies solely on the second demand having been made to Rahmat Ullah alone.