Bapna, J. - (1.) THIS is a second appeal in a suit for pre-emption. The respondent Bhonrelal sued the appellant Parbhati, an assignee from the vendee Ghasi, who had purchased a portion of house property by sale deed dated 10-6-1943, from Gyasi Ram. The respondent alleged that the premises sold were situated in a Bakhal, that is, a house, in which the plaintiff owned the rest of the property. According to the plaint, the vendor was a joint owner of the poli and chauk, and these joint rights had also been sold by the aforesaid sale deed. The consideration was stated to be Rs. 117/ -. It was stated that Ghasi had transferred the property to Parbhati by a sale deed dated 17-8-1943, for Rs. 200/ -. The situation of the property was said to be in village Mojpur, where the plaintiff, it was alleged, had a right of pre-emption, both on account of jointness in the poli and chauk, as also because he was owner of the adjoining property. The defendants filed separate written statements. Gyasi Ram admitted that the plaintiff had a right of pre-emption, but stated that he had really sold the property to Parbhati, but entered the name of Ghasi at the request of Parbhati. Parbhati pleaded that the entire house, excepting the portion in dispute belonged to him, and the plaintiff had by some fraud obtained its sale from his brother's son, and that in this way he had a superior right of pre-emption, and, therefore, the plaintiff was not entitled to succeed. It was pleaded that Rs. 200/- had been paid for the purchase of the property, and Ghasi's name in the first sale deed had been only inserted benami, and the transaction was regularised by obtaining the second sale. Ghasi's defence was the same as that of Parbhati. Only one issue was framed by the trial court, namely, whether the sale of the property in dispute was made for Rs. 117/-, as mentioned in the first sale deed, or for Rs. 200/- as mentioned in the second sale deed. The court held that the first sale was for Rs. 117/-, and it gave a right of pre-emption to the plaintiff. The trial court accordingly decreed the suit on deposit of Rs. 117/- within one month. On appeal, the learned District Judge was of opinion that two more issues should be framed on the pleadings raised by the defendants, viz: 1. Whether the suit was within time? and 2. Whether the plaintiff had a superior right of pre-emption as against the vendee Parbhati? It may be pointed out that the law of pre-emption was codified in Alwar by the Alwar State Pre-emption Act, 1946 (Act No. 7 of 1946), and the plaintiff had relied upon Section 31 (2) of the Act for bringing the suit within limitation. That provision was as follows: " Suits relating to pre-emption which were not filed after the 30th day of April 1942 shall be entertained if instituted within three months next after the passing of this Act in spite of the lapse of the ordinary period of limitation. " After remand, the plaintiff sought an amendment of the plaint by which Mojpur was stated to be a town instead of a village, which was mentioned in the original plaint. To this amendment the defendants had no objection to make, and the court amenaea tne plaint accordingly. After further evidence, the learned Munsif held that the suit was within time, and the plaintiff had a superior right of pre-emption. The suit was accordingly decreed again on deposit of Rs. 117/-by 5-1-1950, after deducting the costs of the suit. An appeal to the District Judge was unsuccessful. Hence this second appeal.
(2.) IT was argued by learned counsel for the appellant that according to the Alwar State Pre-emption Act there was a difference in the accrual of the right of pre-emption according as the property was situated in a village or in a town. The plaintiff's right had been accepted by the lower court on the ground that he was the owner of the adjoining property, and that right was only recognised in case of sale of urban immovable property under Section 16 of the Act. "urban immovable property" was defined in Section 3 as follows: " Immovable property within the limits of a town, other than agricultural land. For the purposes of this Act a specified place shall be deemed to be a town (a) if so declared by His Highness' Government by notification in the State Gazette, or (b) if so found by the courts. " IT was contended by learned counsel that the plaintiff had originally mentioned Mojpur as a village, and although he had subsequently made an amendment so as to call it a town, it had not been proved to be a town, and, therefore, the plaintiff had no right of pre-emption. In the present case, the defendants in their written statements did not plead that the plaintiff had no right of pre-emption, but only contended that his right of pre-emption was inferior to that of the contesting defendant Parbhati. Evert after the amendment which was made on 18-9-1949, there was no plea taken by the defendants that Mojpur was not that kind of locality where a right of pre-emption did not arise as claimed by the plaintiff. In fact, on the application for amendment the defendants did not raise any objection. Further the plea that Mojpur was not a town, and, therefore, the right of pre-emption on the ground of village did not arise therein was not taken in the memorandum of appeal filed in the first appellate court or in the memorandum of appeal filed in this court. Learned counsel for the appellant wanted permission to take up this new plea in this court at the hearing but its decision depended upon an enquiry firstly whether Mojpur had been declared by the Alwar Government as a town, and, secondly, whether it could be so held on evidence by the court. If the plea had been taken in the lower court, an issue could be framed, and a decision of the court could be expected. Another difficulty that had to be faced was that no indications were to be found in the Alwar State Pre-emption Act as to the basis on which any court could come to a conclusion whether a particular locality was or was not a town. In the circumstances it is too late for the appellant to raise the plea that Mojpur was not a town, and the provisions of Section 16 were not applicable to the sale of immovable property in that area. It was next argued that the right of preemption amounted to a restriction on the fundamental right of the citizens of India guaranteed by Article 19 (1) (f) of the Constitution and the restriction, though arising out of an existing law, would still not be saved, at it was not a reasonable restriction, and the provisions of the Alwar Act, allowing a right of pre-emption to an owner of adjoining property being inconsistent with the fundamental right as aforesaid were void under Article 13 of the Constitution. There is some force in the argument of learned counsel, but the present suit was instituted long before the Constitution came into force, and, therefore, the rights of the parties were not affected by the provisions in the Constitution in respect of fundamental rights, which only came into existence on the date of the enforcement of the Constitution. Their Lordships of the Supreme Court held in -- 'keshavan Madhava v. State of Bombay', AIR 1951 SC 128 (A), that "before the Constitution came into force, there was no such thing as fundamental right. As the fundamental rights became operative only and from the date of the Constitution the question of the inconsistency of the existing laws with those rights must necessarily arise on and from the date those rights come into being. Therefore Article 13 (1) can have no retrospective operation but is wholly prospective. If an act was done before the commencement of the Constitution in contravention of the provisions of any law which, after the Constitution, becomes void with respect to the exercise of any of the fundamental rights, the inconsistent law is not wiped out so far as past act is concerned. " It was finally argued that Section 31 of the Alwar State Pre-emption Act, 1946, did not create any rights but only permitted such rights as may have existed to be enforced within the period provided in the Act. It may be pointed out that Sub-section (2) of Section 31 was slightly amended, and it permitted a period of three months next after the publication of the Act instead of from the date of the passing of the Act by the Alwar State Preemption (Amendment) Act of 1947 (5 of 1947 ). There is no doubt that Sub-section (2) of Section 31 was a permissive legislation, and could only be applicable if there was a right to institute a suit for pre-emption and would not apply if there was no right of pre-emption prior to the enforcement of the Act. Learned counsel for the appellant said that prior to the enforcement of the Alwar State Preemption Act, 1946, the matter of pre-emption was only mentioned in Hidayatnama Sharishta Nazool, Raj Alwar, but it related to Nazool land or proceedings in Nazool department, and it had been held by a decision of the Alwar High Court dated 30-4-1942, that there was no law of pre-emption which could be recognised by a court of law. On going through the Hidayat Nama Sharishta Nazool, It appears that it lays down a procedure for enforcing the right of pre-emption through the Nazool department, which, among other mat-ters, was authorised to grant pattas in respect of sale of land, and to hear, entertain and dispose of objections to the sale of property by persons having a right to object to the transfer or by persons who claimed a right of pre-emption. This law was a procedural law, and obviously purported to record in what manner the rights claimed by the objector Including the rights of a pre-emptor should be enquired into. It recognised the right of pre-emption of the owner of adjoining property. It was stated by learned counsel for the appellant that this law had been repealed. The repealing Act was not referred to, but it was conceded that the repeal affected the power of the Nazool Department to deal with the objections. If that is so, it did not affect the rights themselves, but only affected the mode in which those rights were to be adjudicated upon. The Alwar State Pre-emption Act, 1946, was apparently enacted to go round the decision of the High Court that there was no law or custom of pre-emption in Alwar for Section 31 lays down that where any claim for pre-emption in the State was rejected by any Court after 30-4-1942 on the ground that there was no law or custom of pre-emption the plaintiff could make an application for re-hearing of the suit within three months next after the passing of the Act, and further Sub-section (2) provided, for permitting plaintiffs to institute suits for enforcing their right of pre-emption, if they had not filed such suits after 30-4-1942, on the supposition that the judgment of the High Court would not enable them to prosecute their claim. This Hidayatnama Nazool was stated by learned counsel to have been issued some time before 1900 A. D. , and it clearly recognised a right of pre-emption in the owner of adjoining property, and this right was not inconsistent with the provisions of the Alwar State Pre-emption Act, 1946, and, therefore, the plaintiff could institute his suit within the period allowed by Sub-section (2) of Section 31 of the Act. It is not contended that the suit was beyond limitation according to that provision. No other point was convassed by counsel for the appellant. This appeal has no force, and is hereby dismissed with costs. . ;