M.P. Mehrotra, J. - (1.) This second appeal by the defendant arises out of a suit for possession by pre-emption over the property described at the foot of the plaint on payment of Rs. 9,000 or such other amount as may be decided by the court. The allegations in the plaint are briefly as follows : In the city of Muzaffarnagar towards the south of the Shamli Road is the Mohalla known as Abupura. This mohalla consists of various smaller Mohallas and Thakurdwara is one such smaller mohalla where the property in dispute is situated. The plaintiff alleges that the custom of pre-emption prevails in the whole of Abupura and it is not necessary to make demands according to Mohammadan law. The plaintiff claims that he is a co-sharer and also a participant in appendages in a big Haveli of which a portion is in dispute in the suit. The grievance is that Shri Chand, defendant No. 2 secretly sold away the portion in dispute to the defendant No. 1, Mangi Ram on 22-10-1969 for a sale consideration of Rs. 9,000. This step was taken according to the plaintiff to harass him because Shri Chand, defendant No. 2, had been involved in a civil litigation with him. The plaintiff Jyoti Prasad, claims that in view of the custom of pre-emption, which prevails in the locality, he has a right to pre-empt the said sale. On the basis of the aforesaid sale deed dated 22-10-1969 Mangi Ram defendant No. 1 applied on 8th December 1969 to be made a party in suit No. 1176 of 1967 pending between the plaintiff and Shri Chand. The plaintiff alleges that it was then that he came to know for the first time about the aforesaid sale deed dated 22-10-1969. It is alleged that the plaintiff made a demand to pre-empt the property then and there and that he also moved an application in the court in which the aforesaid suit No. 1176 of 1967 was pending but the steps proved of no avail. Thereafter the plaintiff gave a notice dated 22-12-1969. The defendant No. 1 by his reply dated 5th January, 1970 denied that the plaintiff had a right of pre-emption. He, however, expressed his readiness to sell the property on certain terms and conditions which were not acceptable to the plaintiff. Thereafter another notice was given by the plaintiff to the defendant No. 1 on 23-5-1970 but that also proved of no effect, Hence the suit. The defendant No. 1, Mangi Ram, alone contested the suit. He asserted that Thakurdwara was not a part of the mohalla Abupura. His contention was that the two were separate mohallas. It was denied that the custom of pre-emption prevailed in mohalla Thakurdwara. In any case such a custom, even if prevalent, was void and illegal as the same was violative of Article 19 of the Constitution of India. It was further alleged that the haveli in question had been partitioned long back and each portion was an independent separate entity. Consequently it was denied that the plaintiff was a co-sharer or a participant in the appendages in respect of the accommodation which was purchased by the defendant No. 1 from the defendant No. 2. The defendant also denied that the plaintiff came to know of the sale deed dated 22-10-1969 on 8th December, 1969 as alleged by the latter. The plaintiff, according to the contesting defendant, knew of the said sale deed much earlier. It was further alleged that no demand to pre-empt the property was made by the plaintiff on 8th December, 1969 and no copy of the alleged application said to have been made in the aforesaid suit was supplied to the said defendant. The defendant No. 1 also claimed that he had been a tenant of the defendant No. 2 in the property since before the sale deed in question and that he had carried out repairs therein. The plaintiff was not entitled to get back possession as sought by him in the suit.
(2.) The trial court framed the necessary issues and tried the suit. It decreed the same. The lower appellate court affirmed the decree of the trial court. The defendant No. 1, Mangi Ram, has now come up in the instant second appeal and in support and opposition thereof I. have heard learned counsel for the parties.
(3.) On behalf of the appellant the fold lowing points were pressed: (1) No demand was made immediately after the execution of the sale deed on 22-10-1969. Reliance was placed on two cases : N. C. Sarma v. R. C. Chakrabarti, (AIR 1921 Cal 162) and Lokrnan Das v. Sheoraj Kumar (AIR 1955 NUC (All) 1498) . (2) The contesting defendant, Mangi Ram, had purchased the accommodation in dispute from Shri Chand, defendant No. 2. Shri Chand, in his turn, had purchased from one Nanak Chand to whom a portion of the Haveli had fallen on partition among the co-owners. Shri Chand was admittedly a stranger to the family. The defendant No. 1 did not claim any right of pre-emption in 1966 when Shri Chand, a stranger, obtained the property by purchase from Nanak Chand. Hence, the right of pre-emption not having been claimed by the plaintiff in 1966 against Shri Chand, was permanently waived and lost and the same could not be claimed against the subsequent transferees of Shri Chand. The plaintiff-respondent No. 1 was estopped from claiming the said right of pre-emption in respect of subsequent transfers which took place after Shri Chand, a stranger, purchased the property in 1966. Reliance was placed on the following cases : Rameshar Prasad v. Ghisiawan Prasad, AIR 1929 All 531: (1929 All LJ 665) ; Sunder Lal v. Ghissa, AIR 1929 All 589 (2) : (1929 All LJ 1087) ; Narayandas v. Jagan Nath (AIR 1950 Madh Bha 85) ; Syed Oon Mahomed v. Mt. Bint Zohra (AIR 1925 All 645) . (3) The contesting defendant, Mangi Ram, purchased the rest of Shri Chand's portion during the pendency of the suit in 1971. There has been no claim on the part of the plaintiff to pre-empt the subsequent sale in favour of the contesting defendant effected on 8th February, 1971. In view of this aspect of the matter, the defendant, Mangi Ram, became a co-sharer in the property along with the plaintiff and, therefore, the plaintiff did not have any superior right to pre-empt him in respect of the earlier sale dated 22-10-1969. It was contended that the decisive date for adjudication the plaintiff's claim to pre-emption is not the date of the institution of the suit but the date of the decree and in the instant case before the suit came to be decided, the aforesaid sale had taken place on 8th February, 1971 which gave the status of a co-owner to the defence dant, Mangi Ram, also and, therefore, the plaintiff's right of pre-emption, if any, stood destroyed on the material date, namely, when the suit was decided by the trial court. Reliance was placed on the following cases: Jagat Singh v. Sher Singh (1954 All LJ 588) ; Jai Narain v. Phal Narain (AIR 1948 All 192) ; Hans Nath v. Ragho Prasad, AIR 1932 PC 57: (1932 All LJ 190) ; Baldeo Misir v. Ramlagan, AIR 1924 All 82 at p. 83: (21 All LJ 648 at p. 649) ; Bhagwan Das v. Chet Ram (AIR 1971 SC 369) ; Rikhi Ram v. Ram Kumar (AIR 1975 SC 1869) and Sulan v. Masitu, AIR 1926 All 749 : (24 All 14 1003) . (4) The right of pre-emption could be claimed in the instant case only on the basis of co-ownership. After the partition of the property there was no co-ownership and, therefore, the right of pre-emption could not be claimed by the plaintiff. In this connection attention was drawn to the plaintiff's statement under O. 10, R. 2, C.P.C. made on 30-8-1972. In the alternative, it was contended that even if the plaintiff could claim the right of pre-emption on the basis of co-ownership it could only be in respect of the Dahleez and the inner and outer Sahans which alone could be said to have remained jointly owned. It was not admitted that there was any transfer of the Dahleez and the inner and the outer Sahans by the sale deed dated 22-10-1969. However, even if the sale deed be construed to have affected a transfer of the said jointly owned properties, even then the right of pre-emption could be claimed only in respect of the said Dahleez and the inner and outer Sahans which could jointly be owned and not in respect of other portions which were sold to the defendant No. 1 by the sale deed. Reliance was placed on Mulla's Mohammadan Law, 17th Edn. p. 252, Note 245; Mt. Zainab Bibi v. Umar Hayat Khan, AIR 1936 All 732: (1936 All LJ 456) and Mst. Mohmudi v. Mustaque Ali (1958 All LJ 559) . (5) The right of pre-emption is a very weak right and the purchaser is entitled to do everything in law to defeat such right. Reliance was placed on Bishan Singh v. Khazan Singh (AIR 1958 SC 838) ; Radhakrishan v. Shridhar (AIR 1960 SC 1368) and Bhagwan Das v. Chet Ram (AIR 1971 SC 369) . It was contended that in the instant case the defendant Mangi Ram could not make use of the upper portion without passing through and making use of the Dahleez, the staircase and the Sahans. Thus, even if the plaintiff succeeds, the said defendant cannot be prevented from going to the upper portion through the Dahleez etc. on the ground floor. No privacy is, therefore, left which could justify the plaintiff's claim to pre-emption,;