LADU RAM Vs. KALYAN SAHAI

JUDGEMENT

(1.) THIS second appeal is directed against the judgment and decree of the Senior Civil Judge, Jaipur District Jaipur, dated 19th August, 1958, whereby he rejected the appellant's claim for pre-emption.

(2.) THE dispute relates to a Nohra (an enclosed plot of land with few or no constructions) situate in the City of Jaipur. This was sold by Surendra Singh on 28-4-1953 for Rs. 1999/- to Kalyan Sahai. Laduram claiming a right to pre-empt instituted a suit on the grounds (a) that the Nohra adjoins his property on northern side and (b) that his windows and sky-lights from 1st storey to the 4th open towards the Nohra. Technically the basis of the claim was "shafi-jar", pre-emption on the ground of vicinage and "shafi-Khalit" - participators in common appendages - as known to the Mahomedan Law. THE Munsiff Jaipur District who tried the suit found that the right of pre-emption by custom was recognised in the city of Jaipur; that this right on the ground of vicinage was no longer available in view of the fact that it was held to be ultra-vires the Constitution in Shankarlal vs. Poonamchand (1) that the right to pre-empt on 'shafi-Khalect' did not accrue to the plaintiff on his alleged right of light and air and he therefore dismissed the plaintiff's suit. An appeal was taken to the Senior Civil Judge, Jaipur District, Jaipur who also found that the right of Shafi-Khaleet did not arise on the basis of the right of light and air and dismissed the appeal. THErefore, the plaintiff has now come up in second appeal.