LAWS(PVC)-1942-2-54

MEDNI PROSHAD Vs. SURESH CHANDRA TEWARI

Decided On February 05, 1942
MEDNI PROSHAD Appellant
V/S
SURESH CHANDRA TEWARI Respondents

JUDGEMENT

(1.) These two appeals, of which No. 670 is by defendants 1 and 2 and, No. 897 by the plaintiffs, arise out of a preemption suit. Defendants 3 and 4 (called the defendants second party) are the vendors, and defendants 1 and 2 (called the defendants first party) are the vendees. The vended property is one anna share in mauza Hussainipur, tauzi No. 398, District Darbhanga. The plaintiffs claim pre- emption on the ground that they are cosharers of mauza Hussanipur, tauzi No. 398, and as such they are shafi-i-shariks. The parties are Hindus, but it is not disputed that according to the prevailing custom in Bihar the law of preemption is applicable to them. The defence is that defendants 1 and 2 are themselves cosharers and as such they have got equal right with the plaintiffs and that the necessary demands for pre-emption were not made by the plaintiffs in accordance with the requirements of the law. The claim of defendants 1 and 2 as cosharers is based on the allegation that they are cosharers of some other tauzis which together with the disputed tauzi No. 398 have some shamilat lands.

(2.) With regard to the performance of the requisite demands, the plaintiffs gave evidence to the following effect, as found by the Court of appeal below: Immediately on hearing of the sale plaintiff 1 Eamdhari Tewari, since deceased, and his son plaintiff 2 Suresh made the first demand talab-i-mowasibat. Then they proceeded to the house of defendants 3 and 4, accompanied by Bhikhari Pandey P.W. 7, and there they made the second demand talab-i-ishhad invoking Bhikhari as a witness. Next they went along with Bhikhari to defendant 1 and repeated the second demand talab-i-ishhad in the presence of Bhikhari and Rameshwar Choudhury P.W. No. 8, both of whom were asked to bear witness to it, Rameshwar being in the company of defendant 1 at the time. Next, they along with Bhikhari went to the village Hussainipurr where also they repeated the demand talab-i- ishad in the presence of Bhikhari and Earn Khelawan P. W. 9. The latter happened to be present there. According to Suresh's evidence he and his father cited Earn Khelawan as a witness on the occasion. The plaintiffs also deputed an agent to Begusarai where defendant 2 is a pleader, and there the agent in the presence of defendant 2 made the demand talab-i-ishhad.

(3.) The learned Munsif found that defendants 1 and 2 are not cosharers of the disputed property and can have, therefore, no right of pre-emption. He found that talab-i-mowa-sibat was duly performed. As regards the talab-i-ishhad, he found that the demand made in the house of defendants 3 and 4 was not valid, because it was not made in the presence of two witnesses as required by law, but the demands made in the house of defendant 1 and in village Hussainipur were duly performed. He, however, disbelieved the evidence that the demand was also made at Begusarai in the presence of defendant 2. On these findings he decreed the plaintiffs claim for pre-emption.