MUHAMMAD ABDUL RAHMAN KHAN Vs. MUHAMMAD AYYUB KHAN

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for pre-emption. On the 1 of June, 1918, Farzand Ali Khan sold some lands to Pir Khan. On the same date Pir Khan sold these lands to Abdul Aziz Khan. It was the plaintiff's case that within a few days of the sale, news of it was brought to him by his karinda, Maqbul Husain, and that there and then he made the first demand in the presence of three witnesses, Faiyaz Ali Khan, Maqbul Husain and Abdul Rahman. It was his case that he then took these three witnesses with him to the house of Abdul Aziz and made his second demand in the presence of Abdul Aziz and in the presence of the same three witnesses. Subsequent to these demands, the property, along with other properties, was sold by Abdul Aziz to Abdul Karim by a sale-dead dated the 3 of May, 1919. The claim was based also on the alleged custom of pre-emption as recorded in the wajib-ul-arz of mauza Raipur. The defendant vendee took a large number of pleas and resisted the claim. No less than six issues were framed by the trial court. With the exception of the issue relating to the existence of the custom of pre-emption, all the other issues were decided in favour of the plaintiff and the claim was decreed.

(2.) The defendant vendee appealed to the lower appellate court which has reversed the decree of the first court and dismissed the claim. There are, however, only two points decided by the learned District Judge. The other points have been left altogether untouched.

(3.) The learned District Judge has come to the conclusion that Abdul Aziz wanted to defeat the plaintiff's right of preemption, and that in pursuance of that idea he transferred the property bond fide for valuable consideration to Abdul Karim. He, however, found that the transaction in favour of Abdul Karim was not fictitious but a real one, though he thought that it was a device adopted to defeat the right of pre-emption. The other finding was that even if the statement of the plaintiff be taken to be true, it fell short of establishing the performance of necessary demands.