SHEO KUMAR DUBEY Vs. SUDAMA DEVI

JUDGEMENT

(1.) The suit in which this appeal has arisen was brought by Srimati Sudama Devi, who is respondent No. 1 to this appeal, to enforce a right of preemption to which she claimed to be entitled under a custom alleged to be prevailing in the State of Bihar. Two plots of land situate in the town of Chapra, viz., plots Nos. 460 and 462, are contiguous, the former belonging to the plaintiff and the latter to Musammat Kabutra Devi, defendant No. 2 each containing a house. It is averred by the plaintiff that on 25th December, 1951, she purchased orally from defendant No. 2 two dhurs forming the western portion of plot No. 462 measuring 1 katha. Thus, only 18 dhurs out of this plot remained with defendant No. 2, and it is this land over which the right of pre-emption is claimed and which forms the subject-matter of the present litigation.

(2.) The suit property was conveyed by defendant No. 2, to defendant No. 1, the appellant before us, by a registered instrument dated 29th December, 1951. It is said that as soon as the plaintiff received information of the sale she asserted her right of pre-emption and immediately repeated the same in the presence of witnesses on the disputed land, as required by the Mahomedan law. In other words, she performed the two essential formalities, which are prerequisites to the enforcement of the right of pre-emption, viz., talabi Mowasibat and talab-i-ishhad. She further asked defendant No. 1 to reconvey the the disputed land to her on receipt of the price which he had paid to defendant No. 2. As defendant No. 1 refused to comply with this demand, the present suit was brought.

(3.) Defendant No. 1 alone contested the suit. He denied that the plaintiff was entitled to a right of pre-emption. He denied also that she made the two demands (talabs) in the proper manner, as required by the Mahomedan law. He urged that, by reason of non-compliance with the essential prerequisites to a claim for pre-emption the suit was liable to be dismissed.