Mahavir Singh, J. - (1.) THIS second appeal has been preferred by the defendant.
(2.) THE house of the plaintiff respondent no. 1 and the shop in question belonging previously to defendant-respondent no. 2 were contiguous. THE water of the roof of the shop flowed through the house of the plaintiff-respondent and thus she had acquired the right of easement of discharge of water. It so happened that the defendant no. 2 transferred this shop to the defendant no. 1, who is now the appellant before this Court on 30-3-65 for Rs. 2500/-. Further the ventilators of the house of the respondent open on the roof of the shop and he had acquired a right of easement for light and air. THEre was also alleged to be a joint wall between the shop and the house. The case of the plaintiff-respondent is that according to the customary law of pre-emption, he being a shafi-i-sharik (for sharing joint wall) and also Shafi -i -Khalit for the easement of the light and air, and for easement of discharging of water by the other side was entitled to pre-empt the same. So after performing necessary demands (Talabs though there was no necessity for the same according to the custom) he claimed that the sale be made in his favour but the same having been refused, he filed a suit. The defendant no. 1 appellant, who alone contested the suit, alleged that there was no such custom of preemption and in any case the plaintiff-respondent was not Shafi-i- Sharik as the wall was separate and he was also not Shafi-i-Khalit.
(3.) THE learned trial court held that there was no joint wall and so he was not Shafi -i- Sharik. He also held that there would be no pre-emption on the ground of easementary right of light and air as it was an unreasonable restriction and so void. He, however, held that the plaintiff-respondent was Shafi-i-Khalit on account of his being a servient tenement holder due to the owner of the shop having a right of easement of flow of water through his house and there was a custom for pre-emption for such persons. Accordingly he decreed the suit. The learned Additional Civil Judge upheld all the findings of the trial court and so dismissed the appeal.;