MANGI RAM Vs. JYOTI PRASAD

JUDGEMENT

(1.) This second appeal by the defendant arises out of a suit for possession by pre-emption over the property described at the foot of the plaint on payment of Rs. 9,000 or such other amount as may be decided by the court. The allegations in the plaint are briefly as follows : In the city of Muzaffarnagar towards the south of the Shamli Road is the Mohalla known as Abupura. This mohalla consists of various smaller Mohallas and Thakurdwara is one such smaller mohalla where the property in dispute is situated. The plaintiff alleges that the custom of pre-emption prevails in the whole of Abupura and it is not necessary to make demands according to Mohammadan law. The plaintiff claims that he is a co-sharer and also a participant in appendages in a big Haveli of which a portion is in dispute in the suit. The grievance is that Shri Chand, defendant No. 2 secretly sold away the portion in dispute to the defendant No. 1, Mangi Ram on 22-10-1969 for a sale consideration of Rs. 9,000. This step was taken according to the plaintiff to harass him because Shri Chand, defendant No. 2, had been involved in a civil litigation with him. The plaintiff Jyoti Prasad, claims that in view of the custom of pre-emption, which prevails in the locality, he has a right to pre-empt the said sale. On the basis of the aforesaid sale deed dated 22-10-1969 Mangi Ram defendant No. 1 applied on 8th Dec. 1969 to be made a party in suit No. 1176 of 1967 pending between the plaintiff and Shri Chand. The plaintiff alleges that it was then that he came to know for the first time about the aforesaid sale deed dated 22-10-1969. It is alleged that the plaintiff made a demand to pre-empt the property then and there and that he also moved an application in the court in which the aforesaid suit No. 1176 of 1967 was pending but the steps proved of no avail. Thereafter the plaintiff gave a notice dated 22-12-1969. The defendant No. 1 by his reply dated 5th Jan., 1970 denied that the plaintiff had a right of pre-emption. He, however, expressed his readiness to sell the property on certain terms and conditions which were not acceptable to the plaintiff. Thereafter another notice was given by the plaintiff to the defendant No. 1 on 23-5-1970 but that also proved of no effect, Hence the suit. The defendant No. 1, Mangi Ram, alone contested the suit. He asserted that Thakurdwara was not a part of the mohalla Abupura. His contention was that the two were separate mohallas. It was denied that the custom of pre-emption prevailed in mohalla Thakurdwara. In any case such a custom, even if prevalent, was void and illegal as the same was violative of Art. 19 of the Constitution of India. It was further alleged that the haveli in question had been partitioned long back and each portion was an independent separate entity. Consequently it was denied that the plaintiff was a co-sharer or a participant in the appendages in respect of the accommodation which was purchased by the defendant No. 1 from the defendant No. 2. The defendant also denied that the plaintiff came to know of the sale deed dated 22-10-1969 on 8th Dec., 1969 as alleged by the latter. The plaintiff, according to the contesting defendant, knew of the said sale deed much earlier. It was further alleged that no demand to pre-empt the property was made by the plaintiff on 8th Dec., 1969 and no copy of the alleged application said to have been made in the aforesaid suit was supplied to the said defendant. The defendant No. 1 also claimed that he had been a tenant of the defendant No. 2 in the property since before the sale deed in question and that he had carried out repairs therein. The plaintiff was not entitled to get back possession as sought by him in the suit.

(2.) The trial court framed the necessary issues and tried the suit. It decreed the same. The lower appellate court affirmed the decree of the trial court. The defendant No. 1, Mangi Ram, has now come up in the instant second appeal and in support and opposition thereof I. have heard learned counsel for the parties.

(3.) On behalf of the appellant the fold lowing points were pressed: