DR SADIQ ALI Vs. ABDUL BAQI KHAN

JUDGEMENT

(1.) The three second appeals Nos. 1371, 1372 and 1373 arise out of three pre- emption suits instituted by Abdul Baqi Khan against Sadiq Ali and others in the year 1918. Two of them were instituted in the Court of the Munsif and the third in that of Subordinate Judge.

(2.) In order to understand the pleadings in the case it is advisable to give a pedigree of the parties to the three appeals. Musammat Sakina Bibi was married to Abdul Karim Khan. Some time ago a house was purchased by Azmatullah and his son Abdullah alias Hingan in equal shares. Some years afterwards Sadiq Ali, son of Hashmat Ali, sold his interest in the house to Ghulam Musammat. The latter also acquired the shares of his three sisters other than Musammat Kariman. In 1909 Ghulam Muhammad sued for partition against the other members of the family whose shares he had not purchased and obtained a decree. In 1915 Abdul Karim Khan and his sister, Halim-un- nissa, brought a suit for the recovery of their shares against Musammat Kariman and others. The chief defence to the suit was put forward by Abdul Baqi who was also a defendant in the case. He resisted the suit by pleading adverse possession. The claim was decreed by the learned Munsif on the 7 August 1915. On appeal the decree of the First Court was set aside on the plea that the claim was barred by the principle of res judicata. Thereupon Abdul Karim filed a second appeal to this Court which was admitted in November 1915 and the case was remanded by this Court on the 15 November 1918 for trial on the merits. While the second appeal was pending in this Court Abdul Karim and his wife Musammat Sakina Bibi executed on the 22 December, 1917 two sale- deeds in respect of their separate shares in the house mentioned above in favour of Sadiq Ali. On the 15 March 1918 Anwar Ali sued to recover possession of their shares on the ground of pre-emption. The claim was brought against the vendors, Abdul Karim and Sakina Bibi, as also against Sadiq Ali, the vendee. On the 14 May 3918 the vendee and Anwar Ali, the pre-emptor, entered into a compromise by which not only the sale-deed of the 22 December, 1917 was allowed to remain but Anwar Ali agreed to convey his own share also to Sadiq Ali. On the 20 August, 1918 a decree was passed by the learned Munsif in the suit of Anwar Ali in terms of the compromise filed. On the 7 September 1918 Abdul Baqi instituted two suits on the basis of pre-emption against Sadiq Ali, namely, one in respect of the transfer made by Sakina Bibi and the second in respect of the transfer of the share of Anwar Ali under the compromise of the 14 May 1918 which was incorporated into the decree of 20 August 1918. On the 16 December 1918 a third suit was instituted by Abdul Baqi against Sadiq Ali inrespect of the transfer made by Abdul Karim on the 22 December, 1917 in favour of Sadiq Ali. Of these three suits Lie suit relating to the transfer of Anwar Ali was instituted in the Court of the Subordinate Judge of Cawnpore. The other two suits were filed in the Court of the Munsif and were transferred to the file of the Subordinate Judge. Sadiq Ali resisted all the three suits on various grounds. The evidence for all the parties in the three suits was recorded in Anwar Ali's case and one judgment governed all the three suits. The learned Subordinate Judge, after a careful consideration of all the evidence in the case, came to the conclusion that the plaintiff's claim in all the three suits should fail. He was of that opinion in respect of the transfers of Abdul Karim and Sakina Bibi on the ground that the two demands required by the Muhammadan Daw had never been made. In the suit of Anwar Ali he was of opinion that, as the transfer was by means of a decree, no right of pre-emption could be asserted. Abdul Baqi preferred three appeals from the decree of the learned Subordinate Judge. The lower Appellate Court disagreed with the first Court on the evidence and came to the conclusion that the two demands required under the Muhammadan Law were made. The learned Judge of the lower Appellate Court was definitely of opinion that the first demand or the Talab-i-mawasibat was made as soon as the plaintiff -pre-emptor heard of the sales of Abdul Karim and Sakina Bibi. As to the second demand he was also of opinion that it was made on the spot where the property transferred is situate. As to the transfer by Anwar Ali, the learned Judge was of opinion that the transfer was not, properly speaking, by a decree of a Court, but in any case in the circumstances the plaintiff-pre-emptor had the right of pre-emption. The decrees of the first Court were accordingly set aside and the claim of the plaintiff-pre-emptor was decreed in all the three suits.

(3.) Sadiq Ali has preferred the three appeals before us. We take up first the appeals that relate to the transfers made by Abdul Karim and his wife, Sakina Bibi, on the 22 December, 1917. Three objections are urged on behalf of the appellant to the findings of the lower Appellate Court. It is urged on behalf of the appellant that the learned District Judge misread and misquoted the evidence of Rajjab Beg and was not, therefore, justified in disagreeing with the first Court and holding that the first demand was made by the plaintiff-pre-emptor. The second objection is that on the evidence of Rajjab Beg himself the demand, if made, was of no value, as no sale had taken place at the time the matter was reported by Raj jab Beg to the plaintiff-pre-emptor. The third objection is that the second demand on the evidence for the plaintiff-pre-emptor was an invalid demand under the Muhammadan Law. The learned Counsel for the appellant has cited case-law in support of his second and third objections. We think it sufficient to remark with regard to the first objection that after hearing the evidence of Raj jab Beg read we are not prepared to agree with the contention of the learned Counsel for the appellant that the lower Appellate Court has misread or misquoted the statement of Raj jab Beg. The learned Judge of the lower Appellate Court was quite justified in interpreting the evidence of Raj jab Beg-as he has done and his finding on that point is a finding of fact which we are not permitted to disturb. We do not think that there is much force in his second objection also. It also depends upon the interpretation of the evidence of Raj jab Beg. The learned Judge of the lower Appellate Court has construed the statement of Raj jab Beg to mean that he reported to the plaintiff-pre-emptor that a sale of the shares of Abdul Karim and Sakiua Bibi had taken place. The plaintiff-pre-emptor was justified on that evidence to make the first demand. It would serve no useful purpose 1 in view of our finding on the third objection to discuss the case-law as to when should the first demand be made, that is, whether the first demand should be made when the sale is completed under the provisions of Act IV of 1882, or when the sale according to the intention of the parties has been completed. We think that the third objection of the appellant must prevail. The learned District Judge has not come to a clear finding on the question whether at the time of making the second demand the plaintiff-pre-emptor called the attention of his witnesses to the fact that he had already made the first demand. The finding of the lower Appellate Court upon this point is in the following words: As regards the affirmatory demand, it was urged on behalf of the respondent that it was irregular that the witnesses who had accompanied the plaintiff-appellant to the premises were not called upon to bear witness to the fact that the immediate demand had already been made.