- (1.) THIS is a Civil Second Appeal against the order in Civil Appeal No. 78 of 1969 by District Judge, Ajmer, dismissing the plaintiff's appeal.
(2.) THE plaintiff appellant filed a civil suit No. 220/1965 for pre-emption against the respondents. He is the owner of the super structure (constructions of the house bearing No. AMC/xix/469 (Old) and 490 (New) situated at Babugarh Hill, Onasgar Ghati, Ajmer, in virtue of the sale certificate dated the 21st June, 1954. . He is in occupation of land over which the aforesaid constructions stand as an owner of the house and as a tenant at will of Dalchand Patel, in respect of land. Shri Karim Bux Bhisti was the owner of the constructions prior to its purchase by the appellant. Shri Mulomal, the father of respondent in his life time purchased the suit land underneath the constructions in the name of his son Ishwarilal respondent No. 1 on 19th February, 1965 from respondent Nos. 2 and 3. The plaintiff appellant claims right of pre-emption for purchase of this land underneath the house in which he is living as tenant of the land. This pre-emption suit was contested by Ishwarilal and respondents No. 2 and 3. The suit was dismissed and so also the appeal. The first appellate Court has held that the owner of the house over the land and the owner of land underneath the house cannot be said to be co-sharers. It was observed that the plaintiff's claim cannot be considered on the basis of vicinity because the construction of the plaintiff stands on the land itself and not in vicinity. The Ajmer Laws Regulation, 1877, under which the plaintiff claims his right of pre-emption does not specifically confer any right on the owner of the building to pre-empt the land over which such building exists. It only protests the right of the owner of building, who is also tenant in respect of agricultural land on which the building exists and it can only be upheld under the said Regulation No. III of 1817 if custom to that effect prevailing in the locality is proved according to law.
(3.) THE first Appellate court was of the view that the plaintiff has failed to prove any custom of pre-emption and he is not a co-sharer. Both the lower courts have relied upon the judgement of this Court in Panch Gujar Gaur Brahmans v. Amarsingh (1) and in Sant Ram v. Labh Singh (2) in which it has been held that the custom of pre-emption which allows an owner of adjoining to the provisions of property to claim possession of a property sold, only on the ground of being the owner of the adjoining property, is invalid as being contrary Article 19 (1) (f) of the Constitution. The Supreme Court has held that the law of pre-emption based on vicinage is void. ;