ABDUL AZIM Vs. KHONDKAR HAMEDALI

JUDGEMENT

(1.) The Judge holds in this case, that the right of pre -emption cannot be exercised by the party claiming it, because the quantity of land (about 90 bigas, more or less) is too extensive, and he quotes a judgment of the High Court, Ejnash Kooer v/s. Sheikh Amzudally (2 W.E., 261) which ruled "that a claim to right of pre -emption, on the ground of vicinage alone, would not lie in the case of large estates, but only when houses or small holdings of land make parties such near neighbours as to give a claim on the ground of convenience and mutual service." Baillie, in his work on Mohammedan Law, page 471, defines the right of pre -emption as follows: - -"The original meaning of shoofa is conjunction. In law, it is a right to take possession of a purchased parcel of land for a similar (in kind and quantity) of the price that has been set on it to the purchaser. The cause of it is the junction of the property of the shufee or person claiming the right with the subject of the "purchase." And in a note, he states that in the Moontuha ul Urub, it, the word 'parcel' above, is rendered by the Persian words 'parah zumeen,' a piece or fragment of land." It is probable that originally the right of pre -emption extended only to houses, gardens, and small plots of land, and this view is supported by the illustrations of what may be the subjects of pre -emption as given by Baillie; but in looking at the Hedaya, we find it stated at page 591 of volume 3, that shoofa takes place with regard to all lands or houses. The meaning of this is clear on reference to the context. It had been stated in a previous part of the paragraph that, according to the doctrine of shoofa, nothing is subject to shoofa but what is capable of being divided, but the prophet held differently, and adds the writer: "Besides, according to our tenets, the grand principle of shoofa is the conjunction of property, and its object to prevent the vexation arising from a disagreeable neighbour, and this then is of equal force, whether the thing "is divisible or otherwise." The writer of the Hedaya then assigns the reason why the right is not applicable to moveables, because of the saying of the prophet, "shoofa affects only houses and gardens" and "also because the intention of shoofa being to prevent the vexation arising from a bad neighbour, it is needless to extend it to property of a moveable nature." Looking at the chapter on shoofa in the Hedaya, the right appears to be limited to parcels of land, houses, & c., and does not contemplate the right to purchase a separate estate, because a part of it is conterminous with that of the shufee. It is true that a person may have a bad neighbour, as a zemindar, and so suffer as much vexation from him as from a bad neighbour next -door, or holding the next field, but still it appears to me that the law was intended to prevent vexation to holders of small plots of land who might be annoyed by the introduction of a stranger among them. I think I would apply the ruling laid down in the judgment of the Court quoted above, to the present case, and allow the judgment of the lower Court to stand, for the property to which the right of pre -emption is claimed is a separate estate paying revenue to Government. I would dismiss the appeal with costs.

(2.) I concur. The property in dispute is an estate paying revenue to Government, and I am not prepared to say that this case is not governed by the decision relied upon by the respondent.