JAGDISH SARAN Vs. BRIJ RAJ KISHORE

JUDGEMENT

(1.) DEFENDANT -respond ent No. 2 Mohammad Husain was the owner of two shops. On 31-10-1955 he sold them to Jagdish Saran, appellant. The plaintiff-respondent, Brij Raj Kishore. who owned an adjoining shop filed the suit for pre-emption of the sale of the two shops on the basis of custo mary right of pre- emption on the grounds that the water of the roofs of the plain tiff's house and shop used to flow through the same spout along with the water of the shops sold, and that the beams of the plaintiff's shop rested on the wall inter vening between the plaintiff's shop and the shops sold. He alleged that he ap proached the defendant Jagdish Saran also for executing the sale deed of the two shops in his favour, but he paid no heed, hence the suit for pre-emption.

(2.) THE defendant-appellant coin tested the suit on numerous grounds in cluding the ground that the custom re lating to the right of pre-emption was ultra vires the Constitution. The trial court decreed the plaintiff's suit and the decree of the trial court was confirmed by the lower appellate court, hence this Second Civil Appeal.

(3.) WHAT we have to decide is whe ther customary right of pre-emption on the ground set up by the plaintiff offends Art. 19(1) (f) or not. In Bhau Ram v. Baij Nath Singh, AIR 1962 SC 1476, laws of three different States came up for con sideration. The Supreme Court held that all laws of pre-emption impose restric tions on the fundamental rights of both the vendor and of the vendee to hold and dispose of property guaranteed by Arti cle 19(1) (f). The Supreme Court then considered the question whether the verious laws allowing pre-emption on dif ferent grounds were saved (sic) the Cl. (5)1 of Art. 19. i. e. whether they imposed rea sonable restriction in the interest of the general public. It held that the laws conferring a right of pre-emption upon a co-sharer (Shafi-i-Sharik) imposed reasonable restriction in the interest of the general public; and observed:-