SHEIKH MOHAMMAD RAFIQ Vs. KHALILUL REHMAN

JUDGEMENT

(1.) These appeals have been brought by special leave from a common judgment of the Allahabad High Court whereby the dismissal of the suit for specific performance filed by the appellant was maintained and the decree for possession by pre-emption in favour of respondent No.1 was confirmed.

(2.) One Gauhar Ali was the owner of a pucca two storeyed house in the City of Moradabad. On his death he left behind as his heirs his widow Musammat Begum, two sons Liaqat Ali and Ishtiaq Ali and four daughters Sughara Begum. Kubra Begum, Mehmooda Begum and Chhoti Begum. In 1941 the heirs of Gauhar Ali partitioned the property. According to the partition the house in dispute was divided longitudinally east and west. The western portion was allotted to the widow and the sons and the eastern portion came to the share of the four daughters. Respondent No.1 purchased the western portion of the house from the widow and the sons. On August 19, 1952 he also entered into an agreement with the four daughters for the purchase of their part of the house, namely, the eastern portion. The period in which the sale-deed was to be executed was three months but it appears that the sale was not completed. On August 11, 1953 all the four daughters executed an agreement of sale in favour of the appellant. Musammat Chhoti Begum, however, changed her mind and executed a sale-deed in favour of respondent No.1 on August 14, 1953. The other three daughters however, did not go back on the agreement entered into with the appellant and they got a sale-deed transferring their share registered in favour of the appellant on August 17, 1953. This sale was, however, actually registered in the books of the Sub-Registrar on October 6, 1953.

(3.) On September 9, 1953 the appellant filed a suit against respondent No.2 (Chhoti Begum) for specific performance of her part of the agreement Respondent No.1 also filed on February 6, 1954 a suit for possession by pre-emption on the allegation that he had become a co-sharer with the other three daughters by virtue of the sale effected in his favour by Chhoti Begum of her share in the eastern portion of the house. Both the suits were tried and disposed of by the trial Court which held that respondent No.1 was not a bona fide purchaser for value but since he had a right of pre-emption the suit for specific performance was dismissed and the suit relating to pre-emption was decreed in favour of respondent No.1. The appellant filed appeals before the first appellate Court which failed. He preferred two appeals to the High Court which upheld the decree of dismissal in the suit for specific performance filed by the appellant. As regards the suit for pre-emption it was held that the ground of vicinity was no longer available in view of the judgment of this Court in Bhau Ram v. B. Baijnath Singh, (1962) 3 Suppl. SCR 724 . The High Court, however, came to the conclusion that respondent No.1 was a sharer in the appendages - common gate and common passage - and therefore he was entitled to pre-emption.