BISHANDAYAL Vs. RADHAMOHAN

JUDGEMENT

(1.) THIS is an appeal by Bishan Dayal against an order of a learned single Judge of this Court, and has arisen in the following circumstances : - One Mst. Sunder Bai filed a suit for pre-emption against Ganga Sahai and Gafoor. The present appellant Bishen Dayal represents Mst. Sunder Bai. The suit was based on the sale of a house by Ganga Sahai, father of the present respondent Radha Mohan, to Gafoor. The plaintiff claimed pre-emption on the ground of the custom prevalent in the City of Jaipur. THIS custom is said to be the same as the Mahomedan Law of preemption, by which shafi-i-jar has the right to pre-emption of houses, gardens and small pieces of property. The suit was resisted by the respondents, whose case was that the plaintiff was not a shafi-i-jar.

(2.) IT has been found that there is a lane intervening between the house of the plaintiff and the house that has been sold, and this lane belongs neither to the plaintiff nor to the defendant, but to the Municipality. The width of this lane is 4-1/2 feet, and it is open at both ends. At one end it meets a public road, while on the other side there is open land belonging to the State. In these circumstances, the learned single Judge came to the conclusion that the plaintiff could not be a shafi-i-jar, and, allowing the appeal before him, dismissed the suit. There is some error at the end of the judgment of the learned Judge, inasmuch as the word "shafi-i-khalit" has been for "shafi-i-jar. "