AJIJUR RAHMAN BARBHUIYA Vs. HAJI MOSHAID ALI LASKAR

JUDGEMENT

(1.) These two second appeals arise out of the common judgment and decree passed by the Assistant District Judge No.1, Cachar at Silchar in Title Appeals Nos. 22/ 1975 and 24/ 1975. The said two appeals were also directed against the common judgment and decree passed by the Munsiff No.2, Silchar in Title Suit No.77 of 1973.

(2.) The question of law involved in these appeals relates to the right of pre-emption under the Mahomedan Law.

(3.) The plaintiff filed a suit for preemption against the defendants. His case teas the suit land belonged jointly to Musstt. Lalbi Bibi (defendant No.7), Md. Mantaz Ali (defendant No.8) and the plaintiff and the same was also jointly possessed by them. All of them belong to Mahomedan community and under the Mahomedan Law, they have right of pre-emption. On 3-6-72, the defendants Nos.7 and 8, without the knowledge of the plaintiff, sold the suit .land for Rs. 2,000.00 to six persons (defendants Nos.1 to 6). On 14-4-73 at about 10 a.m., while the plaintiff was sitting at his outhouse with other four persons and having gossips with them, one Abdul Latif alias Chandu Mia came and reported him that one Hazi Moshaid Ali Laskar and others had purchased the suit land from the defendants Nos.7 and 8 for Rs. 2,000.00. Hearing this, the plaintiff immediately shouted pronouncing 'Shafi' and expressed that he would purchase the suit land at the same price at which it has been sold by his co-owners to the said purchasers. Thus, according to the plaintiff, he performed the 'Talabi-Mowasibat' and then he went to the suit land along with the four persons sitting with him and in presence of the said persons as witnesses standing on the suit land he declared and asserted that he was " Shafi" and further declared his intention to purchase the suit land which had been sold by his co-owners to the purchasers. The purchasers did not convey the suit land to the plaintiff accepting from him the price they paid to the vendors. Hence, the plaintiff filed the suit for pre-emption. The purchasers were made the defendants, 1 to 6 in the plaint. The co-owners were defendants Nos. 7 and 8. All the defendants including the two co-owners of the plaintiff, contested the suit by filing a joint written statement. They denied the allegations made in the plaint contending that the defendants Nos. 7 and 8, the co-owners of the plaintiff being in dire necessity of money and proposed to sell their share to the plaintiff but on his refusal to purchase sold the same to the defendants Nos. 1 to 6. According to them, the plaintiff never declared or asserted the right of pre-emption in respect of the suit land. In course of trial, it was also brought on record that the plaintiff after asserting his right of pre-emption, during the pendency of the suit, purchased 1 / 6th share of the suit land from one of the six purchasers, namely, the defendant No.2, Alauddin Laskar.