ABDUL KARIM Vs. SHIV NARAIN

JUDGEMENT

(1.) This is a defendant's appeal against a judgment and decree of Mr. Gulal Chand Jain, Subordinate Judge First class, Delhi, dated the 27th of February 1948 decreeing the plaintiff's suit for possession by preemption.

(2.) On the 20th April 1943, Mst. Phooli and two others sold to defendant No. 1 Sheikh Abdul Karim a plot of land measuring about 1,000 sq. yards on which there were standing some kacha huts situate in Sabzi Mandi near Barafkhana, Delhi City, for a sum of Rs. 40,000/-. This deed was registered on the 29th of April 1943, and, on the 29th of April 1944, the plaintiff Shib Narain brought a suit for pre-emption alleging that the custom of preemption prevailed in Sabzi Mandi and claimed pre-emption on the ground of vicinage. The defendant denied that there was any custom of pre-emption and also the right of the plaintiff to pre-empt the sale, and he also pleaded that the land was situate in Mauza Jahan Numa where, there was no custom of pre-emption. The price paid for the property sold was also disputed, but it is not necessary to go into that matter as the question has not been raised before us. The learned trial Judge decreed the plaintiff's suit holding that the custom of pre-emption prevails in Sabzi Mandi, but in regard to where the property is situate, whether in Sabzi Mandi or in Mauza Jahan Numa, the finding does not seem to be quite dear.

(3.) The two points which have been argued by counsel for the appellant are, (1) that the land in dispute is situate in Mauza Jahan Numa where no custom of pre-emption prevails and (2) that no custom of pre-emption has been proved to exist in Sabzi Mandi.