RAM CHAND KHANNA Vs. GOSAWMI RAM PURI

JUDGEMENT

(1.) The subject-matter of the dispute in this case is a small plot of land, No. 1293, situated in Ramapura, one of the quitters of the city of Benares. According to the finding of the Court below it has been used for the cultivation of suit trees The parties to the suit are Hindus and the plaintiff claimed to be entitled to pre-empt a sale of the plot in question made in favour of the defendant-appellant.

(2.) It was alleged in the 4 paragraph of the plaint that a custom of pre-emption prevails in the city of Benares upon which the plaintiff relied for his right. It was further pleaded in the 6 paragraph of the plaint that the plaintiff had observed the preliminary formalities on hearing of the sale, from which it is to be understood that the plaintiff admits that pre-emption as exercised in Benares City must to sought and enforced in accordance with the procedure laid down by the Muhammadan Law.

(3.) Both Courts have decreed the plaintiff's claim. In appeal the main contention is, that as the plaintiff-had. failed, to prove that the custom alleged extends to the, purchase of lards, as distinct from houses his suit should have been dismissed. It is common ground that a custom of preemption relating to house property and based upon the Muhammadan Law obtained in the City of Benares. This custom has been affirmed by a long series of judicial decisions. It is argued, however, that no judicial recognition has been extended to pre-emption where the subject of Sale is land as distinct from house property.