RAJENDRA KUMAR Vs. RAMESHWAR DASS MITTAL

JUDGEMENT

(1.) This is a defendant's second appeal in a suit for pre-emption of the sale of the part of a Haveli situated at Shamli, District Muzaffarnagar, by sale deed dated 29-6-1972, registered on 27-12-1972, for Rupees 15,000/- by the defendants Nos. 2 and 3 to the defendant No. 1. It was said that in the old Abadi of Shamli, to the west of Muzaffarnagar Road, the custom of pre-emption was prevalent since times immemorial among all the residents of that locality, Hindus or Muslims, irrespective of religion, in accordance with Muslim Law, subiect however, to the fact that it was not necessary to make Talabs in accordance with that law, and the demand for preemption in any form was good enough The first right of pre-emption was that of a co-sharer, the next of a participa- tor in appendages and immunities, and the last that of a Shafi-I-Jar. But the lost kind of right of pre-emption, on account of vicinage, had become void on the enforcement of the Constitution.

(2.) The plaintiff claimed that he was a co-sharer in the Haveli; that he had his houses to the east of the Haveli, while the defendants Nos. 2 and 3 had their houses to the west thereof: that the inner courtyard and the Dahlij of the Haveli through which people passed in and out, and the Rasta, the bathroom and the Chabootra to the south of the Dahlij, were common between the houses of the plaintiff and the house in suit. It was also alleged that the drain of both portions joined one common drain which passed through the Dahlii and drained out the water from the whole house. Thus it was said that the plaintiff was Shafi-I-Shariq and also Shafi-I-Khalit, i. e., a participator in the appendages and immunities and was entitled to pre-empt the sale of the house in suit.

(3.) The plaintiff further alleged that the defendants Nos. 2 and 3 had effect-ed the sale of the portion of the Haveli in suit with the common Sahan, Dahlii and bath-room etc., in favour of the first defendant by sale deed dated 29-6-1972 which was registered on 27-12-1972 for Rs. 15,000/- without any information to the plaintiff, and they did not care for the plaintiff's right of preemption. The first defendant, it was said, was a stranger and had no right or share in the house in suit and the plaintiff was entitled to pre-empt the sale. It was then alleged that on coming to know of the sale deed, the plaintiff made the demand for pre-emption, in accordance with the custom, to the first defendant, and when the sale deed was registered, he again made a demand for pre-emption in the end of December. 1972, and thereafter also he made certain demands, but the first defendant avoided to comply. It was then said that thereafter a notice dated 23-2-1973 was served by the plaintiff on the first defendant demanding preemption of the property in suit, to which the said defendant sent a wrong reply, hence the suit.