- (1.) THIS is an appeal by Bishan Dayal against an order of a learned single Judge of this Court, and has arisen in the following circumstances : - One Mst. Sunder Bai filed a suit for pre-emption against Ganga Sahai and Gafoor. The present appellant Bishen Dayal represents Mst. Sunder Bai. The suit was based on the sale of a house by Ganga Sahai, father of the present respondent Radha Mohan, to Gafoor. The plaintiff claimed pre-emption on the ground of the custom prevalent in the City of Jaipur. THIS custom is said to be the same as the Mahomedan Law of preemption, by which shafi-i-jar has the right to pre-emption of houses, gardens and small pieces of property. The suit was resisted by the respondents, whose case was that the plaintiff was not a shafi-i-jar.
(2.) IT has been found that there is a lane intervening between the house of the plaintiff and the house that has been sold, and this lane belongs neither to the plaintiff nor to the defendant, but to the Municipality. The width of this lane is 4-1/2 feet, and it is open at both ends. At one end it meets a public road, while on the other side there is open land belonging to the State. In these circumstances, the learned single Judge came to the conclusion that the plaintiff could not be a shafi-i-jar, and, allowing the appeal before him, dismissed the suit. There is some error at the end of the judgment of the learned Judge, inasmuch as the word "shafi-i-khalit" has been for "shafi-i-jar. " Learned counsel for the appellant submits that even though there is this 4-1/2 feet wide lane between the two houses, the plaintiff has a right of pre-emption as shafi-i-jar, because that right arises by vicinage, and it cannot be said that the plaintiff is not a neighbour of the defendant because of this small strip of land intervening between the two houses. It is not, in our opinion, necessary to go deeply into the etymological meaning of the word "shafi-i-jar", because this word has been a subject of consideration in practically all the High Courts in India, and by now has received a definite meaning. Further, various commentaries on Mahomedan Law are also agreed as to what this kind of pre-emption means, and when it can be defeated. We may briefly refer to some of these books, and also to some of the cases. In Mulla's Principles of Mahomedan Law, 13th Edition, page 211, sec. 231, the three classes of persons, who can claim pre-emption under the Mahomedan Law, are mentioned, and the third class is described as "owners of adjoining immovable property (shafi-i-jar)". Thus, according to this author, shafi-i-jar are those who have immovable property adjoining the property sold. In Agarwala's Law of Pre-emption, Fifth Edition, the learned author mentions shafi-i-jar as one of the classes of pre-emptors at page 90, and translates him as "a neighbour". Later at page 168, when dealing with devices for avoiding the right of pre-emption, he mentions a device by which a man selling his mansion can avoid pre-emption by excepting the breadth of a cubit along the boundary of the pre-emptor. By this means the pre-emptor has no right of pre-emption, because his neighbourhood is cut off. It is obvious, therefore, that if the neighbourhood can be cut off by such a device, shafi-i~jar can only mean a person whose property actually adjoins the property sold. Similarly, Wilson in his Anglo-Muhammaden Law, Sixth Edition, page 416, mentions this kind of device for defeating the right of pre-emption of a neighbour, and says that a vendor by reserving to himself a strip, however narrow, of the land or house sold may defeat the right of the pre-emptor, as in that case there is no contiguity, vide paragraph 391. It seems, therefore, from these authorities that contiguity is necessary for the right of pre-emption to succeed on the ground that the person is a shafi-i-jar. In "a Digest of Mohammadan Law, Hanifeea" by Baillie, at page 504, there is mention of a device for defeating the right of pre-emption of a neighbour, and this device is the same, namely, to leave a part of the property sold next to the property of the pre-emptor, and thus break the contiguity of the property sold with the property of the pre-emptor. In Kathalay's Law of Pre-emption, 1928 Edition, the question of the existence of a passage between the property sold and the property of the pre-emptor was considered, and in paragraph 182 it was observed that the existence of a private road was not an obstacle to the exercise of the right of pre-emption, as that might belong either to the vendor or the pre-emptor or it might be the common property of both, and thus the contiguity was not broken. But it is pointed out that the matter is otherwise if a public road or a public river intervenes. We may now turn to the case law on the point. Learned counsel for the appellant relied on two cases of the Allahabad High Court in this connection. In Abdul Shakur vs. Abdul Ghafur and another (1) ([1910] VI Indian Cases, 358.) pre-emption was allowed of a sale deed of three plots when only one plot adjoined the plot of the pre-emptor. It was argued in that case that as two of the plots did not adjoin the plot, of the pre-emptor, there could be no pre-emption of those two plots. That argument was repelled, and it was held that the three plots went to make up one entire parcel of land which adjoined the plaintiff's land, and he could, therefore, pre-empt all the three plots. It is obvious that the facts of that case were of a peculiar nature, and under the circumstances that case is no authority for the view that pre-emption can be claimed as shafi-i-jar under the Mahomedan Law even when the properties do not adjoin each other. It is remarkable that one of the plots sold, at any rate, adjoined the plot of the pre-emptor. In Aziz Ahmad vs. Nazir Ahmad and others (2) (A. I. R. 1927 All. 504), the plot of the pre-emptor adjoined the plot sold; but there was a kucha public road passing through the plot sold, and it was urged that that part of the plot sold, which was on the other side of the kucha road, could not be pre-empted. This argument was repelled, and it was held that the land covered by the kucha road did not belong to the public, and was in reality a part of the plot, though the public had a right to pass through it. It was held that the area sold was one compact whole, and, therefore, the entire area could be pre-empted, the public apparently having the same right through it after the pre-emption as it had before. Here again the facts were peculiar, and there was contiguity undoubtedly between the plot sold and the plot of the pre-emptor. Learned counsel for the appellant then referred to a number of cases from the Punjab. The cases are summarised in Ratan Lal Gupta's The Punjab Pre-emption Act, 1926 Edition, at page 253. In some cases it had been held in the Punjab that vicinage was enough, and contiguity was not required; but in a larger number of cases it was held otherwise. In view of this difference of opinion the Legislature intervend and provided that there must be contiguity in order that pre-emption may be claimed. It may be added that the cases in which contiguity was not insisted upon were cases where a special kind of custom was pleaded and an example of this is to be found in Ralia Ram vs. Kollan Khan (3) (108 Punjab Record 1886 ). Reference may also be made to Justice Mahmood's judgment in Gobind Dayal vs. Inayatuilah (4) (I. L. R. Vll All. 775 ). The learned Judge dealt with the entire history of pre-emption in Mahomedan Law, and, when dealing with vicinage, remarked as follows: - "these texts leave no doubt in my mind that the 'cause' or foundation of pre-emption is 'conjunction' of the pre-emptor's property with that of the vendor. " This conjunction by vicinage is what gave the right of pre-emption to shafi-i-jar. It appears to us, therefore, that in order that a person may claim pre-emption as shafi-i-jar under the Mahomedan Law, which is the custom prevalent in the City of Jaipur, he must show that his property adjoined the property sold. The mere fact that a lane intervenes may not in certain cases defeat the right of pre-emption, because the person may be able to prove that the lane is private, and both the parties have right of ownership on it, and, therefore, in fact there is contiguity. But, as in the present case, where the lane is not private property but belongs to the Municipality or the State, it cannot be said that there is contiguity between the property sold and the pre-emptor. Contiguity, in our opinion, is of the essence of the right of pre-emption to a shafi-i-jar. We may in this connection refer to some cases of the High Court of the former State of Jaipur to show how the law was applied by that court. In Malilal and another vs. Ram Gopal and another (1) (1949 Jaipur Law Reports, 11), shafi-i-jar was recognised as one kind of pre-emptor, namely, a neighbour, and the meaning given to it at page 13 was in these words : - "by jar or neighbour is meant the owner of property adjoining the subject of pre-emption. " Again in M. Bhagwan Das vs. Sikandar Khan and others (2) (1949 Jaipur Law Reports, 45.), we find that devices to defeat pre-emption were recognised as proper ways of defeating pre-emption, and it was held that if a man sold the whole of his house, excepting only the breadth of one yard extending along the house of the pre-emptor, there would be no right of pre-emption, because there was no proximity between the two estates. Thus, contiguity between the property sold and the property of the pre-emptor is necessary for the doctrine of shafi-i-jar to apply. In this case, as the lane intervening is not the property of either party but belongs to the municipality or the State, there is, in our opinion, no contiguity, and, therefore, the plaintiff cannot claim pre-emption as shafi-i-jar. We, therefore, agree with the decision arrived at by the learned single Judge, and dismiss the appeal with costs to the defendant-respondent. . ;