MOHAMMAD MAKIN Vs. FAZLE RAB

JUDGEMENT

(1.) A. P. Singh, J. This Second Appeal has been filed by the defendant No. 1 questioning the legality of the decree and judgment passed by Civil Judge, Faizabad on 22. 5. 1956 in Civil Suit No. 3 of 1952 Choudhary Fazle Rab v. Mohd. Makin and another and of the Additional District Judge, Allahabad in first appeal No. 328 of 1957 decided on 31st March, 1977 affirming trial courts judgment and decree.

(2.) RESPONDENT filed a suit for pre-emption claiming his superior right of purchase of the house in suit as against husband of Mst. Manzooran Nisa Bibi, defendant No. 2. The said defendant No. 2 got the house in suit from her husband in lieu of dower debt through a sale-deed executed in her favour by her husband. She then transferred the said house in favour of the appellant, who was defendant No. 1 in the suit, for a sum of Rs. 6,000/-on 15. 1. 1951. RESPONDENTs claimed in the suit that being a co-sharer in the house in suit he is entitled to pre-empt the property against the appellant. Defendants filed a common written statement for resisting the suit. It was inter alia pleaded by them that since the house in suit was situate in the township of Tanda and not in a revenue village therefore no presumption of existence of the right of pre-emption in favour the plaintiff on the ground of co-sharership neither under Section 7 of the Awadh Laws Act arose nor there was in vague a custom to that respect prevalent in that area.

(3.) DEFENDANTS filed 1st appeal in this Court, the appeal was however transferred for being decided by District Judge, Allahabad on account of change of jurisdiction. The appeal therefore came for decision before 1st Additional District Judge, Allahabad. First Additional District Judge, Allahabad found that necessary issue which ought to have been framed and decided in the suit had not been framed. Accordingly he framed that issue and remitted the case back to the trial Court under Order XLI, Rule 25 of Civil Procedure Code for returning a finding on that issue; the issue was: "whether the site in question had acquired the character of a town site on the date of the transfer in question or whether it was part of a revenue being in Mohal Sakhawat Ali of an agricultural village ?"