CHAND KHAN Vs. NAIMAT KHAN

JUDGEMENT

(1.) The plaintiff in this case claimed to purchase certain lands, which the defendants had mutually sold and bought under huq-shafa. He claimed it in two ways, both by the right of khulit, and also by the right of vicinage. The defendant denied the right called khulit; and as to vicinage, he alleged, that he himself was the next neighbour, and therefore had, at least, an equal right of pre-emption; and be also denied the performance of the tulub-i-muwasabat and the tulub-ishad. The Munsiff found on all the points for the plaintiff. The Subordinate Judge held that the right which the plaintiff claimed under the denomination of khulit, was not such as the Mahomedan law recognised; but be omitted to consider the plaintiff's alleged co-equal right of vicinage; and he thought it unnecessary to determine whether the preliminary forms had been observed or not. The plaintiff comes here in special appeal, and asserts that the right of khulit was made out. It appears to me, that in the circumstances of this case, the plaintiff was entitled to claim as shafa khulit. It appeared, because the defendant's written statement admitted it, that water from a certain dighi was accustomed to flow across the plaintiff's land and the land in dispute. That appears to me to be such participation in the appendages of the land as is referred to in Macnaghten on Mahomedan Law, page 4, section 6. It seems a more than usually reasonable claim, because it would be a matter of great consequence to the plaintiff that he should be able to acquire land in respect of which his own land was burdened with servitude, such as that of water passing over it.

(2.) I am also of opinion, that even if this were not the case, the plaintiff's claim to participate in the purchase as being a neighbour equally with the defendant, ought to have bean considered. That, however, is immaterial, because a shafia kabuliat ranks above a mere neighbour. We are unable however to dispose of this case finally, because the Subordinate Judge, as he thought no right was made out, did not determine, whether or not the plaintiff had observed the necessary preliminaries. The case therefore must go back to him in order that he may find on the evidence whether he observed those forms or not.