Wanchoo, C.J. - (1.) This is an appeal by Shankerlal against the judgment and decree of the Civil Judge, Jodhpur, in a pre-emption suit.
(2.) The suit was brought by Poonam Chand for pre-emption with respect to the sale of a house in favour of Shankerlal. The right was based on vicinage as provided in the third clause of Section 3 of the Law of Pre-emption in Marwar. The trial Court decreed the suit, and therefore the defendant has come in appeal to this Court.
(3.) The relevant portion of Section 3 is as follows: "The right of pre-emption in respect of a house or a building plot shall belong to the under mentioned in the following order: 1st .................................... 2nd .................................... 3rd to a person owning immovable property touching the house or building plot in respect of which pre-emption is claimed..............." A question was raised that the law of pre-emption has been invalidated in view of the provisions of Articles 13 and 19 of the Constitution. The matter was considered in a Pull Bench decision of this Court in -- 'Panch Gujar Gaur Brahmans v. Amarsingh', AIR 1954 Raj 100 (A). The question there arose with respect to Shafii- jar in the Muhammadan Law of pre-emption which prevailed in the town of Bundi as customary law. The Pull Bench came to the conclusion that the custom of preemption, which allows an owner of adjoining 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 to the provisions of Article 19(1) (f) of the Constitution. That decision was with respect to a custom based on vicinage. The same considerations, in, our opinion, apply to the statute law of pre-emption based on vicinage as the third clause of Section 3 of the Law of Pre-emption in Marwar obviously is. Following, therefore, the decision of the Pull Bench, we hold that the third clause of Section 3 of the Law of Pre-emption in Marwar has become invalid from 26-1-1950.;