RASHID AHMAD Vs. NAZAR MOHAMMAD AND OTHERS
LAWS(UTN)-2008-11-14
HIGH COURT OF UTTARAKHAND
Decided on
November 12,2008
RASHID AHMAD
Appellant
VERSUS
Nazar Mohammad and others
Respondents
Referred Judgements :-
MOHAMMAD BAQAR AND OTHERS VS. NAIM-UN-NISA BIBI AND OTHERS [REFERRED TO]AUDH BEHARI SINGH VS. GAJADHAR JAIPURIA [REFERRED TO]
RAM SARAN LALL THE STATE OF PUNJAB VS. DOMINI KUER:MST DOMINI KUER [REFERRED TO]
JUDGEMENT
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(1.)THIS appeal, preferred under Section 100 of Civil Procedure Code, 1908, is directed against the judgment and decree dated 14.04.1987, passed by Civil Judge, Roorkee, in Civil Appeal No. 67 of 1982, whereby said appeal was allowed and judgment and decree dated 29.05.1982, passed by the trial court (Munsif, Haridwar) in Suit No. 61 of 1979 is set aside, and the suit filed by the plaintiff for decree of pre-emption, is dismissed.
(2.)HEARD learned counsel for the parties.
Brief facts of the case giving rise to this appeal are that plaintiff Rashid Ahmad instituted the suit for decree of pre-emption in respect of the property in question with the pleading that all the parties to the suit are Muslims of Sunni sect and bound by Hanafi law. They are residents of Jwalapur. There is custom of pre-emption in Jwalapur. Plaintiff and defendant no. 1 are real brothers and they had equal half shares in the property in suit, which they purchased through a sale deed executed on 6th March 1964 by one Ghasita. When defendant no. 1 started talking relating to sale of his share in the property to defendants/respondents no. 2 and 3, the plaintiff made a demand of his right of pre-emption. He served a notice on defendant no. 1 in this connection. However, defendant no. 1 vide sale deed dated 19th June 1979 sold his share in the property to defendants/respondents no. 2 and 3 for a consideration of Rs.3000/. The sale deed was registered on 20th June 1979. As soon as plaintiff/appellant came to know of the sale deed, he thrice jumped and orally claimed his right of pre-emption in the presence of the witnesses, but the defendants ignored the same. Hence, the suit.
(3.)DEFENDANTS /respondents contested the suit and filed their written statements in which it is denied that there is any custom of pre-emption in Jwalapur. Another plea on which the defendants contested the suit is that property in question had already been partitioned between the plaintiff and defendant no. 1 before the sale deed in question was executed and as such otherwise also the plaintiff had no right of pre-emption in respect of the share already partitioned. It is also denied that plaintiff ever claimed right of preemption, as alleged by him.
(2.)HEARD learned counsel for the parties.
Brief facts of the case giving rise to this appeal are that plaintiff Rashid Ahmad instituted the suit for decree of pre-emption in respect of the property in question with the pleading that all the parties to the suit are Muslims of Sunni sect and bound by Hanafi law. They are residents of Jwalapur. There is custom of pre-emption in Jwalapur. Plaintiff and defendant no. 1 are real brothers and they had equal half shares in the property in suit, which they purchased through a sale deed executed on 6th March 1964 by one Ghasita. When defendant no. 1 started talking relating to sale of his share in the property to defendants/respondents no. 2 and 3, the plaintiff made a demand of his right of pre-emption. He served a notice on defendant no. 1 in this connection. However, defendant no. 1 vide sale deed dated 19th June 1979 sold his share in the property to defendants/respondents no. 2 and 3 for a consideration of Rs.3000/. The sale deed was registered on 20th June 1979. As soon as plaintiff/appellant came to know of the sale deed, he thrice jumped and orally claimed his right of pre-emption in the presence of the witnesses, but the defendants ignored the same. Hence, the suit.
(3.)DEFENDANTS /respondents contested the suit and filed their written statements in which it is denied that there is any custom of pre-emption in Jwalapur. Another plea on which the defendants contested the suit is that property in question had already been partitioned between the plaintiff and defendant no. 1 before the sale deed in question was executed and as such otherwise also the plaintiff had no right of pre-emption in respect of the share already partitioned. It is also denied that plaintiff ever claimed right of preemption, as alleged by him.
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