YAKUB MOHAMMAD SHAKUR MOHD Vs. KARIM

JUDGEMENT

(1.) The appellant instituted a suit in the Court of the Munsiff, Sehore, to enforce his right of pre-emption in respect of a house situated in Sehore. That suit was decreed by the learned Munsiff. The defendant Karim, who had purchased the house from Nathobai on 5th July 1952 then preferred an appeal in the Court of the District Judge of Bhopal. That appeal was allowed by the learned District Judge and the plaintiffs suit was dismissed. The learned District Judge took the view that Section 11(6) of the Bhopal Pre-emption Act 1934 was void from 26th January 1930 by reason of Articles 13(1) and 19(1)(f) of the Constitution. The plaintiff has now preferred this second appeal.

(2.) Mr. Dubey, learned counsel for the appellant, first contended that the judgment recorded by Mr. Gupta, the District Judge of Bhopal, and pronounced by his successor Mr. Pathak in the appeal preferred by the defendant was not valid inasmuch as when Mr. Gupta wrote out the judgment he had relinquished the charge of the office of the District Judge and had no jurisdiction over the suit. Learned counsel relied on Lalshah v. Rikhiram, 7 C. P. L. R. 18. This objection must be rejected in view of the decision dated 6th February 1959 of a Division Bench of this Court (Jabalpur) in First Appeal No. 30/55, Dammulal v. Smt. Kalavati Devi, 1959 M. P. L. T. (Notes) No. 82: (AIR 1960 Madh-Pra 18). While dissenting from the decision in 7 C. P. L. R. 18 it has been held that Order 20 Rule 2 C. P. C. empowers the successor to pronounce a judgment which was written by his predecessor after he had ceased to have jurisdiction over the Court. The judgment pronounced by Mr. Gupta must, therefore, be held to be valid.

(3.) It was then urged that Section 11(6) of the Bhopal Pre-emption Act, which gives to a person the right of pre-emption by vicinage was not repugnant to Articles 13(1) and 19(1)(f) of the Constitution. In view of what I have said in Babulal v. Gowardhandas, (S) AIR 1956 Madh Bha 1, I am unable to accept this contention In AIR 1956 Madh-B 1 a Full Bench of M. B. High Court exhaustively dealt with the question whether a statutory provision giving right of preemption by vicinage can be said to be valid after 26th January 1950 by reason of Articles 13(1) and 19(1)(f) of the Constitution and came to the conclusion that such a statutory provision was void as from 26th January 1950. Learned counsel referred me to Ramchandra v. Janardan, (S) AIR 1955 Nag 225, in which a Full Bench of this Court upheld the validity of the law of preemption contained in the Berar Land Revenue Code 1928. aS pointed out in (S) AIR 1956 Madh-Bha 1, the decision in (S) AIR 1955 Nag 225 and other cases dealing with statutory provisions relating to pre-emption of agricultural lands are distinguishable by the fact that in those cases the relevant provisions were held to be reasonable because they tended to preserve the integrity of the village and the village community and to avoid fragmentation of holdings.