DEWAN JEWAN NATH MADAN Vs. RASUL GADOO

JUDGEMENT

(1.) The appeal before the Board arises out of a suit to pre-empt a sale of land which originally belonged to one Satar Gadoo. The case made in the plaint is that the plaintiff is a collateral of Satar Gadoo while the defendant No. 2 Ahmad Rishi is a Pisar Parwarda or adopted son of Satar Gadoo. He executed a deed of sale in respect of the property in favour of defendant No. 1. The plaintiff's case is that he being of the same caste and a collateral has got a preferential right to pre-empt against the defendant No. 1. The defence, according to the written statement, is that the plaintiff has no right of prior purchase as claimed by him. Certain ether pleas where raised in defence. The trial Court of the Second Additional Munsiff Srinagar struck various issues and after trial dismissed the suit holding that the plaintiff had not proved that he was the presumptive heir of the vendor. On appeal the senior Subordinate Judge remanded the case to the trial Court under Order 41, rule 23 of the Civil Procedure Code. The trial Court again dismissed the suit holding that the plaintiff had not proved that he was the presumptive heir. On appeal the senior Subordinate Judge again remanded the suit to the trial Court calling for a report on the following issues framed by him: -

(2.) After considering the report in due course the senior Subordinate Judge held in favour of the plaintiff and decreed the suit. - The defendant vendee appealed to the High Court which held that the Court below had rightly decreed the plaintiff's claim. The present appeal is by the defendant vendee.

(3.) The point which is argued before the Board is comprised in issue No. 5 as mentioned above. The findings on the other issues are not challenged before the Board.