MAHMOOD HASAN KHAN Vs. BHIKHARI LAL

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for per-emption. The property in dispute consists of certain plots of land comprised in Khata Khewat No, 14 in Qasba Fatehpur. Mohal Kamalpur Abdur Rauf Khan. The plots are situated within the Municipal limits of Fatehpur and consist of a guava grove. In a portion of it there is a graveyard as well. The total area of the plots in dispute is 4 bighas and 6 biswas. The defendants 3 and 4 sold these plots to defendants 1 and 2 for an ostensible consideration of Rs. 1300/-. The plaintiff-appellant brought the suit which has given rise to this appeal for pre-emption, on the ground that he was a co-sharer in the mohal in which the plots were situated while the vendees were not and further that he held in proprietary right a guava grove adjoining the plots in dispute. According to him, the Muhammadan Law applied to the case and he had made the necessary demands for pre-emption. He further pleaded that in any case he had a right of pre-emption according to the customary law applicable to the mohal. The real sale-consideration was alleged by him to be only Rs. 650/-.

(2.) The defence of the vendees was that they themselves were owners of a guava grove in proprietary right adjoining the plots in dispute and that they were also co-sharers in the mohal. They denied the custom of pre-emption and urged that the Muhammadan Law of pre-emp-tion did not apply to them, they being Hindus. They also denied that any demands were made by the plaintiff and that he had any preferential right to pre-empt. The sale consideration was asserted to be Rs. 1300/-. Bar of estoppel was also raised.

(3.) The trial Court held that the Muhammadan Law applied to the case and that while the plaintiff was the owner of an adjoining grove, the defendants had failed to prove that they also owned an adjoining grove. He also held that "there is some land between the land in suit and the defendants' Khanjari Bagh. The result is that the plaintiff is a Shafi-i-jar under the Muhammadan Law while the defendants are not, and under the terms of the custom, the plaintiff is entitled to pre-emption as a co-sharer while, the defendants are not co-sharers in the Mohal". The sale consideration was held by him to be Rs. 1238/-. He held that demands were made by the plaintiff as required by law. He rejected the Plea of estoppel and decreed the plaintiff's suit for possession of the land in dispute on payment of a sum of Rs. 1238/-. The defendants-vendees appealed to the lower appellate Court. At first the appeal was dismissed mainly on the ground that the defendants had failed to prove that they were the proprietors of the land of the grove which they claimed to be their own and which they claimed adjoined the land in dispute. It appears that the defendants had failed to file the sale-deed by which they claimed to be the owners of the adjoining grove. They, therefore, made an application for review of judgment on the ground of discovery of an important piece of evidence in the shape of the sale-deed in their favour which according to them showed that they had purchased not merely the trees but also the land on which the grove, stood. Before deciding the application for review the Court ordered that a copy on scale of the plots in dispute and the adjoining plots which the parties claimed to belong to them should bet filed, so that the matter may be decided correctly. This order was passed on 4-10-1948. On 21-10-1948, the defendants-vendees filed a copy of a settlement map showing the plots in respect of which pre-emption was claimed as also the grove plot which the defendants alleged to belong to them and also the grove plots belonging to the plaintiff. This map showed that the grove claimed by the defendants-vendees as belonging to them and which was numbered as 1779 was indeed adjacent to plot No. 1784, one of the plots which was sold. The grove belonging to the plaintiff was also adjacent to that plot. The learned Judge of the Court below ultimately allowed the application for review and set aside his previous order dismissing the appeal and set down the case for rehearing. Against the order allowing the review application there was an appeal to this Court which was, however, dismissed. The order allowing the application for review, therefore, became final. Ultimately the lower appellate Court allowed the appeal holding that the defendants-vendees were owners of the site of the grove No. 1779 which was adjacent to one of the plots sought to be preempted and consequently they were Shafi-i-jars and as such had equal right of pre-emption with the plaintiff who was also shafi-i-jar. It, therefore, dismissed the suit, but it did not take into consideration -- and probably the point was not pressed before him -that even though the parties were equal Shafi-i-jars, the plaintiff could claim half the property pre-empted and the suit was not liable to be dismissed merely because the plaintiff had no preferential right over the defendants-vendees. Against the decree of the Court below the pJaintiff has preferred this second appeal.