- (1.) Instant intra -court appeal has been preferred as against decision rendered by Single Bench on an application filed under Order 22 Rule 9 Code of Civil Procedure to hold that appeal has abated on death of original Plaintiff, who had filed suit for pre -emption. The Single Judge has opined that under customary law right of pre -emption is heritable as such appeal can be continued by legal heirs of deceased Plaintiff. Hence, there is no abatement of cause of action on death of original Plaintiff; appeal can continue and is pending consideration for decision on merits before Single Bench. Aggrieved by order passed by Single Bench, instant intra -court appeal has been preferred.
(2.) Shri Sagar Mal Mehta, learned Senior Counsel appearing on behalf of Appellant, has submitted that Single Bench has ignored and overlooked distinction between right of pre -emption based on Mohammedan law and right of pre -emption which was involved in decision rendered by Apex Court in Kanta Rani alias Kanta Devi and Anr. v/s. Rama Rani : (1988) 2 SCC 109, in which decision it has been laid down by Apex Court that under Mohammedan law such right of pre -emption is not heritable whereas customary law in question in aforesaid decision it was heritable. Counsel has submitted that in Jaipur city custom of pre -emption is based upon Mohammedan law and has been borrowed from it, as observed in several decisions of this Court which learned Counsel has referred to. Thus, it is submitted that distinction has been ignored under law which is based upon custom of pre -emption based upon Mohammedan law and custom which was prevalent in Punjab. Mohammedan law holds field in instant case. The decision rendered by Single Bench being contrary to law deserves to be set -aside. None appeared on behalf of Respondents despite service.
(3.) It is appropriate to refer various decisions which have been rendered by this Court with respect to origin of custom of pre -emption in Jaipur. In S.B. Civil First Appeal No. 18/1972 - Radhaballabh v/s. Pushalal, decided on 27.08.1973, it has been observed in the context and factual matrix that vendor, vendee and preemptor were all Hindus, the right of pre -emption was claimed on the basis of immemorial custom prevailing in the city of Jaipur. It is well settled by series of decision of Supreme Court and other High Courts that when a custom of pre -emption established to prevail amongst non -muslims in a particular locality it must be presumed to be founded on and co -extensive with the Mohammedan law unless contrary is shown.;