BERI, J. - (1.) THIS second appeal is directed against the judgment and decree of the Senior Civil Judge, Jaipur District Jaipur, dated 19th August, 1958, whereby he rejected the appellant's claim for pre-emption.
(2.) THE dispute relates to a Nohra (an enclosed plot of land with few or no constructions) situate in the City of Jaipur. This was sold by Surendra Singh on 28-4-1953 for Rs. 1999/- to Kalyan Sahai. Laduram claiming a right to pre-empt instituted a suit on the grounds (a) that the Nohra adjoins his property on northern side and (b) that his windows and sky-lights from 1st storey to the 4th open towards the Nohra. Technically the basis of the claim was "shafi-jar", pre-emption on the ground of vicinage and "shafi-Khalit" - participators in common appendages - as known to the Mahomedan Law. THE Munsiff Jaipur District who tried the suit found that the right of pre-emption by custom was recognised in the city of Jaipur; that this right on the ground of vicinage was no longer available in view of the fact that it was held to be ultra-vires the Constitution in Shankarlal vs. Poonamchand (1) that the right to pre-empt on 'shafi-Khalect' did not accrue to the plaintiff on his alleged right of light and air and he therefore dismissed the plaintiff's suit. An appeal was taken to the Senior Civil Judge, Jaipur District, Jaipur who also found that the right of Shafi-Khaleet did not arise on the basis of the right of light and air and dismissed the appeal. THErefore, the plaintiff has now come up in second appeal. It is common ground that the right of pre-emption is recognised in the city of Jaipur as a custom in accordance with the principles of Mahomedan Law. It is also no longer in dispute that in view of the decision in Panch Gujar Gaur Brahman vs. Amar Singh (2), which has been approved by their lordships of the Supreme Court in Bhau Ram vs. Baijnath Singh (3) a claim for pre-emption on the ground of vicinage is no longer valid being repugnant to the fundamental right guaranteed under Art. 19 (l) (f) of the Constitution of India. The one and only question which calls for decision is whether the concept of 'shafi-Khaleet' includes within its ambit the rights of easement of light and air arising from the existence of windows and sky-lights in the property of the plaintiff and opening towards the Nohra in question. Learned counsel for the appellant and respondents have frankly conceded that there is no reported case available directly deciding the precise point arising in this case. This necessitates the examination of the first principles touching the doctrine of 'shafi-Khaleet'. 'khaleet' literally means 'mixed up'. Shafi-Khaleet is a 'participator in appendages'. Baillie says that though rights of water and way are given as examples of "shafi-Khaleet" it does not appear that a Khaleet in any other right than these has the right of pre-emption - See Baillie I page 476 (481 ). Wilson's Anglo Muhammadan Law Sixth Edition, 1930, p. 393, states, - "owners of property connected with the property in question through some right in the nature of an easement, whether such easements be attached to both properties as dominant tenements as against a third property, or to one of them as dominant against the other as servient tenement. Such persons are called "participators in the appendages. " Tyabji in his Muhammadan Law, Third Edition p. 708 summarises the position thus, - Sec. 541-B.- "by the khalit or participator in appendages, is meant the owner of property to which is annexed or on which is imposed a private right of way or of water or other easement or appendage such right being also annexed to or imposed upon, the subject of pre-emption. This definition is subject to sec. 541-D, 541-F and 541-G. " The material paragraph for the purposes of this case is 541g which reads : - Sec. 541-G.- "if the owner of the subject of pre-emption and the claimant participate in the beneficial enjoyment of a private right of way or water or other appendage, or easement : see sec. 541-B each becomes the khalit of the other, though the properties owned by them may not be mutually dominant and servient heritages; where the appendage consists of an easement, it need not have become absolute by having been peaceably enjoyed during the period of prescription. " Ameer Ali in his Mahommedan Law Vol. I Third Edition, page 600 states on the question of pre-emption as follows: - "i appeartains (1) to the co-sharer in the property, called a shafi-i-sharik, 'pre-emptor by right of co-parcenary; (2) to a sharer in the rights and appurtenances, called a shafi-i-khalit, 'a pre-emptor by virtue of a right of easement over the property sold; (3) to a neighbour, or shafi-i-jar, 'pre-emptor by right of vicinage. " While the well-known work Baillie's Digest of Muhammadan law which is based on the authority of Fatwah Alamgir, refers to restrict the connotation of the term 'shafi-Khalit' merely to the rights of way and water the author of "a Digest Anglo-Muhammadan Law" Sir Roland Knyvet Wilson, appears to have generalised it by using the expression "through some right in the nature of easement. " The decided cases he has discussed on this aspect of the matter are mainly Karim vs. Priyo Lal Bose (4) and Baldeo vs. Badri Nath (5 ). Karim's case related to the preemption of a house situate in Benares, as it was then spelt. The pre-emptor's house was on the north of the house in dispute and that of the vendee in the south. The pre-emptor claimed his right to pre-empt on the grounds (a) that the apertures of the premptor's house opened towards the house in dispute and (b) that the water from the eves of the pre-emptor's house falls on the house in dispute. He, therefore, claimed a preference over the rights of the vendee whose claim rested on the ground of vicinage only. While summing up his claim it was urged that he enjoyed rights of easements over the house sold. Banerji, J. held as follows: - "as the plaintiff in the present case has the right of flow of water over the disputed property he has the right of pre-emption as a khalit, and has priority over the vendee, who is only a neighbour. " The learned Judge did not decide the pre-emptor's claim on the footing of the right of easement arising from existing apertures. In Baldeo's case (5) the dispute again related to a house situate in Benaras. The house of the pre-emptor dis-charged water on the property sold and this latter and the house of the vendee discharged water on a lane intervening between the two houses and the property sold. Thus both the pre-emptor and the vendee were sharers in the immunities and appendages (Shafi-Khalit) and, therefore, one had no preference over the other. This case also did not endeavour to lay down any general proposition that easements of all kinds created any right in the nature of Khalit. It merely dealt with a case of drainage of water and held that no particular period was prescribed in Muhammadan law for the acquisition of an immunity for discharging water or right of way. Tyabji in his paragraph 541b employs the clause "or other easement or appendage" on the basis of Aziz Ahmad vs. Nazir Ahmad (6) which has laid down that branches of a tree projecting over the land of neighbour do not give the owner of the tree any right of Shafi-Khalit. This case does not authorise the learned author to embrace easements other than that of way and water within the ambit of the doctrine of Khalit. On the other hand Sulaiman and Banerji JJ. who decided this case quoted Baillie's Mahomedan Law Volume I, the same passage which I have noticed earlier in this judgment and on that authority rejected the appellant's claim based on the over-hanging branches of his tamarind tree. Although Ameer Ali puts the words "a preemptor by virtue of a right of easement over the property sold " in inverted comas either because it is a translation of the expression 'shalf-i-khalit' or a quotation he does not quote the source from which either this transaction or the excerpt has been taken. At any rate he does not say that the right of easement of every variety over the property sold confers the right of pre-emption. Thus the widening of the scope of Khalit to easements other than that of way and water as seems to have been done by Wilson and Tyabji is neither supported by Baillie nor by the decided cases of the Allahabad High Court to which reference has been made by the learned authors. The learned counsel for the appellant invited my attention to some other decided cases which I might as well mention. In Chand Khan Vs. Nyamnt Khan (7) water was accustomed to flow from a certain degree to the plaintiffs' land and from there to the land in dispute. It was held that the plaintiff was a participator in the appendage and entitled to pre-empt on the basis of 'khuleet'. In Runchod Das Vs. Jugaldas (8) it was held that the right of lateral support was not an appendage to property falling within the class 'khaleet'. In this case easement of support was not recognised as one included in the category of Khaleet. In Shivshanker Chhaga-nlal Shukla Vs. Laxman Chimanlal Soni (9) it has been observed by Divatia, J. that "under the Mahomedan law a person who is a participator in immunities and appendages such as a right of way or a right of discharge of water has got a preferential right to another person who may simply be owner of adjoining property without having easement rights over the suit property. " The learned Judge has employed practically the same language as Baillie and in fact what he was called upon to consider was the competitive claims between the second and third class of pre-emptors. In Abdul Rehman vs. Mohd. Ismail (10) it was held that the right of pre-emption arises from right of way and right to discharge water. This right depends on the Easements Act in India and does not depend on isolated user. In this case as well no other kind of easement was considered. None of these cases appear to support the wide view that the right of preemption of the class of 'khalit' can arise from the existence of easement other than those relating to right of way and the right to discharge water. Rather the cases of Ranchoddas (8) and Abdul Rehman (10) clearly suggest a view to the contrary. The right of pre-emption is in the very nature of things a restriction on the right to acquire, hold and dispose of property and in the context of the liberties guaranteed by the Constitution of India I am not inclined to give a wider connotation to the term Khaleet than that which Baillie adopted and Allahabad High Court has accepted. , merely because some text writers have chosen to lend it an amplitude unauthorised by precedents. In my opinion, therefore, the plaintiff-appellant before me even though he may have had right of light or air over the Nohra - and I am not deciding whether he had or he had not such a right - on that account he cannot claim a right to pre-empt. The result is that this appeal fails and is dismissed with no order as to costs. Learned counsel for the appellant prays for leave to appeal. Leave is allowed. . ;