SANT RAM Vs. LABH SINGH

JUDGEMENT

(1.) These are two second appeals arising out of two pre-emption cases. It will be convenient to deal with them together because they involve a common, question of law.

(2.) S.A. No. 620 of 1957 is a defendants' appeal. Srimati Kesri Begum, the second respondent in that appeal owned two houses in the town of Milak in the district of Rampur. By a sale-deed dated 4th of December, 1953, she sold the two houses to the appellant. The respondent no. 1 Sri Labh Singh owned a house adjacent to the houses sold. He sought to pre-empt the sale on. the ground that there was a custom of pre-emption prevalent in the town of Milak in accordance with which he, being a Shafi-e-jar was entitled to have the two houses in preference to the appellants. He, therefore, claimed the two houses in enforcement of his right of pre-emption. The suit was contested on various grounds. The existence of the custom of pre-emption relied upon was denied. The performance of the necessary Talabs was disputed and it was also pleaded that the plaintiff could not claim a right of pre-emption because a strip of land measuring three feet and six inches separating the plaintiffs house from the property sold had not been sold and was still being retained by the vendor. The other pleas raised were repelled but the last mentioned plea was accepted by the trial Court which on that ground dismissed the suit. The plaintiff questioned the decision of the trial Court in appeal. The lower appellate Court confirmed the findings of the trial Court on the other question involved tut did not agree, about the loss of the plaintiffs right of preemption on the ground that a strip of land immediately adjacent to his house had not been sold. The learned Civil Judge was of the opinion that the device adopted to defeat the plaintiff's right was a fraudulent, imperfect and insufficient one. It was argued before the learned Civil Judge that on the coming into force of the Constitution, the law of pre-emption under which the plaintiff claimed, had become void but the plea was not accepted. The appeal was, therefore, allowed and the plaintiffs suit was decreed. The vendee then filed a second appeal in this Court and among the questions which were raised on his behalf in this Court was the question, relating to the constitutionality of the law in question after coming into force of the Constitution. Mr. Justice V.D. Bhargava before whom the appeal came up for disposal was of opinion that authorities on the point were conflicting and that the question was one which deserved consideration by a Division Bench. He, therefore, framed the following question and referred it to a Division Bench for consideration : "Whether after coming into operation of the Constitution, the right of pre-emption is contrary to the provisions of Article 19 (1) (f) read with Article 13 of the Constitution, or is it saved by Clause (5) of Article 19 ?''

(3.) In the other Second Appeal No. 2656. of 1959, Irshad Ahmad and Iqbal Ahmad sold a house situated in the town of Varanasi by a sale-deed dated 4th of June, 1954, in favour of Srimati Karam Ilahi'. Alleging that a custom of pre-emption was prevalent in the town of Varanasi, Ikhtiar. Ahmad sought to pre-empt the sale. He questioned the correctness of the consideration entered in the sale-deed and claimed to have performed the necessary Talabs. The suit was contested on various grounds. It was pleaded that he had no right of pre-emption, that he had not performed the Talabs that the suit was barred by estoppel and acquiescence and that the consideration entered in the sale deed was the real consideration.