SINGH ENGINEERING WORKS Vs. COMMISSIONER OF INCOME TAX

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.) ON behalf of the defendants-vendees the decision of the Court below was sought to be affirmed on two additional grounds one of which does not seem to have been raised before that Court and the other could not have been raised before it. It was urged that the Muhammadan Law does not allow pre-emption on the ground of vicinage in respect of largg estates and allows pre-emption on that ground only in respect of houses, gardens and small plots of land. It was also urged that a garden is different from a grove and that the property in dispute does not fall within the category of a garden. No case in which the property claimed consisted of a few plots and not the entire mohal or a share in a mohal and was dismissed on the ground that such plots of land could not be pre-empted, was shown to us. The cases relied upon were all cases in which the property sought to be pre-empted consisted of mohals or a share in a mohal. --'Abdul Rahim Khan v. Kharag Singh', 15 All 104 (G), was a case in which after a perfect partition, a mohal had been formed and it was sought to be pre-empted by a co-sharer in the other mohal. It was held that on the ground of vicinage alone under the Muharamadan Law such property could not be pre-empted. In --'Munna Lal v. Hajira Jan', 33 All 28 (H), there was also an entire mohal which was sought to be pre-empted. The leading case on the point is --'Sheikh Mahomed Hussain v. Shaw Mohsin Ali', 6 Bang LR 41 (FB) (I). That was also a case of pre-emption in respect of a considerable estate consisting of a share in a village. It was held that the right of pre-emption on the ground of vicinage alone did not extend to such property. In the course of judgment, however, it was observed that, according to the Muhammadan Law the right of pre-emption possessed by a neighbour extends only to houses, gardens and small parcels of land.