- (1.) THIS is a second appeal by the vendee in a pre-emption suit.
(2.) MST. Sagiran sold her house to Parbhati on 31st August, 1940, for a consideration of Rs. 99/ -. The respondent Isar instituted a suit for pre-emption on 12th October, 1940, the right of pre-emption being alleged both on the ground of vicinage and jointness in the party-wall. The suit was decreed by the trial court on 18th October, 1941, but on appeal the suit was dismissed by judgment of 6th December, 1943. An application was made to set aside that order, and after being unsuccessful in the Court of District Judge a revision was filed in the High Court, which gave directions that the application be considered. In the meanwhile a law was promulgated in Alwar that all old case, which had been dismissed on the ground that the right a preemption did not exist in Alwar, may be reopened on application in this behalf within a certain time. On application being made under that law, the appeal was restored, and the District Judge after rehearing allowed the appeal and sent the case back to the trial court for decision on merits by judgment of 30th September, 1947. The Civil Judge, Alwar, decreed the suit in favour of the plaintiff on 24th July, 1950, and the appeal was dismissed by the District Judge on 28th April, 1951. The defendant vendee has come in appeal. It was contended by learned counsel for the appellant that the of pre-emption was a weak right, and according to the decision of the Court in Shankarlal vs. Poonam Chand (1) it should continue to exist not only on the date of the suit, but also till the date of the decree. It was then argued that the decree of the trial court, which was passed in 1941, had been set aside on 6th December, 1943, and thereafter while the case was still pending in the trial court, the Constitution of India came into force. The right of preemption being a restriction on the right to acquire, hold and dispose of property was inconsistent with Art. 19 (1) (f) of the Constitution, and the right of pre-emption on the ground of vicinage has been held by this Court in the case Panch Gujar Gour Brahmans vs. Amar Singh (2) to be an unreasonable restriction. It was, therefore, contended that the right of preemption was thus abrogated by the enforcement of the Constitution, and since that right had been abrogated a decree could not be passed because the right did not subsist till the date of the decree, i. e. , 24th July, 1950. It may be pointed out that the right of pre-emption of the plaintiff on the date of sale on the ground of vicinage is not disputed. It has no doubt been held by this Court in Shankarlal vs. Poonamchand (1) that there are three material dates, and the right of pre-emption must exist on all these dates, namely, the date of sale, the date of suit, and the of decree. It was, however, pointed out that the date of the decree must be the date on which the decree was actually passed, and if the trial court had dismissed the suit, and it was the appellate court which had given a decree of pre-emption, the right must exist upto date of the appellate court's decree. In Kanhaiyalal vs. Gourilal (3) the decree referred to has been pointed out to be the decree of the trial court. In this case the suit was decreed on the first occasion on 18th October, 1941, long before the Constitution came into force. It did not, to my mind, matter, if, as a result of appeal, that decree was set aside. A recent decision of the Supreme Court, Audh Behari Singh vs. Gajadhar Jaipuria (3) was in a case where the right of pre-emption was claimed on the ground of vicinage by custom, in respect of a sale which took place on 29th March, 1941. The trial court dismissed the suit on a finding that there was in fact a custom of pre-emption in the city of Banaras, but the custom being a, local custom it could not be enforced against either the vendors or the vendee in the case, as none of them were natives of or domiciled in Banaras. The same judgment was upheld, in appeal, by the High Court. It was held by their Lordships of the Supreme Court that; the right of pre-emption was an incident of property, at least in respect of all house properties, situated withing the city of Banaras, and no incident of such custom had been proved which would make the right available only between persons who are either natives of Banaras or are domiciled therein. The appeal was allowed, and the judgments of both the courts were set aside. It was directed that the case should go back to the High Court for consideration of the two questions left undecided by it, namely, whether the plaintiff had made the demands in due compliance with the forms prescribed by the Muhamadan law and secondly whether the plaintiff, being a landlord, could eject his own tenants in exercise of the right of pre-emption. This was, therefore, a case where the right of pre-emption on the ground of vicinage arose before the enforcement of the Constitution. The suit was dismissed by the two courts, but nevertheless the Supreme Court upheld the right of pre-emption when it decided the appeal on 23rd April, 1954. The present case is stronger in the sense that that right had been upheld at one stage on the 18th of October, 1941, before the enforcement of the Constitution. The view taken in Panch Gujar Gour's case may require to be re-examined in the light of the Supreme Court decision, but I do not consider it necessary to refer this case to a larger Bench as in the present case that right, which came into existence before the Constitution was upheld by a decree of the trial court on 18th October, 1941, and that was the crucial date on which the right merged in the decree and it did not matter if the decree was later set aside or the right was not consistent with the provisions of the Constitution which came into force during the pendency of the proceedings after the trial court's decree on 18th October, 1941. The case is distinguishable from Pauch Gujar Gour's case. I am, therefore, of opinion that the right of pre-emption on the ground of vicinage, which came into existence prior to the Constitution was not lost in the present case. On the second aspect of the case, namely, accrual of the right on the basis of jointness in the party-Wall, the document of title Ex. p. 2, Patta, issued by Government on 12th August, 1881, in pursuance of the sale must be held to be genuine not requiring further proof. It proves the jointness of the plaintiff in the party-wall between the house of the plaintiff and the house of the vendor, and the issue was wide enough to enable the parties to lead evidence and if the defendant has failed to rebut the documentary evidence aforesaid, the) finding on that point should also be given against the defendant. I would dismiss the appeal with costs. Ranawat J.- I am doubtful whether the decree of the trial court passed on 18th October, 1941, which was set aside on appeal on 6th December, 1943, will permit the continuance of the right of pre-emption on the ground of vicinage, but I agree on the second aspect of the case that the evidence on record proves the jointness of the pre-emp-tor with the vendor in the party-wall. On this second ground the appeal must be dismissed with costs. By the Court - The appeal is dismissed with costs. .;