NATHUNI RAM Vs. GOPINATH

JUDGEMENT

(1.) This is an appeal by the plaintiff whose suit for pre-emption has been dismissed. There is a house standing on a lease hold land, bearing Holding No. 118, Circle No. 45, Wird No. 14, within the Patna Municipal Corporation. If originally belonged to the plaintiff and the husband of defendant No. 2. There was a Partition of the house between the two owners as a result of which the eastern half portion of the house fall to the share of the plaintiff and the westem-half portion to the share of the husband of defendant No. 2, and this western-half portion ultimately came to be owned by defendant no. 2. On the 8th of December, 1951, she sold this western-half portion of the house to defendant No. 1. The case of the plaintiff is that he came in know of the sale on the 31st of January, 1952, and, soon there, he performed the two requisite ceremonies for claiming the right of pre-emption. He accordingly, filed the suit, out of which this appeal arises, for pre-emption.

(2.) The suit was contested by defendant No. 1, and the defence taken by him was that the re-quisite ceremonies had not been performed, that the sale of the house had been effected with the full knowledge of the plaintiff, and that, the 1and on which the house stood being a lease-hold property there could not be any right of pre-emption.

(3.) The trial court held that the requisite ceremonies were not only perfomed, and that the sale had been effected with the knowledge of the plaintiff. The learned Munsif, however, found that the plaintiff could be entitled to claim the right of pre-emption on the ground of vicinage it he had performed the ceremonies. Since, however, on the finding the ceremonies had not been performed, the suit was dismissed. On appeal, the learned Subordinate Judge reversed the findings of the trial court on the list two points and held that both the requisite ceremonies were duly and legally performed and that the plaintiff had no knowledge of the sale and, as such, the suit was not barred by waiver and estopped. He, however, held that, as the land over which the house stood was a lease-hold property, there could not be any right of pre-emption with respect to the same. The appeal was, accordingly, dismissed and the order of dismissal passed by the trial court was affirmed.