ASA RAM Vs. BASA RAM

JUDGEMENT

(1.) This is an appeal by an unsuccessful pre-emptor whose suit for preemption has been dismissed by the Courts below. The facts briefly are these : On 11th February 1910, one Mirimal sold two plots of land in the town of Shamli, district Muzaffarnagar, Nos. 8967 and 3969, in favour of two men, Asa Ram and Jado Rai. The plaintiff whose name is also Asa Ram claimed preemption with respect to plot No. 3969 only as Shafi-khalit and Shafi-jar. He based his claim on his ownership of the adjacent plot No. 3970, which, along with the plot No. 3969, has a common drain. He confined his claim to one of the plots, on the allegation that this right of vicinage extended only to plot No. 3969 and not to 3967. He alleged that the ostensible sale consideration of Rs. 4000 was not the real consideration. The real consideration, according to him, was Rs. 1800 only. The defence, in the main, was that there was no custom of pre-emption in the area in which the plots in dispute lie. It was also pleaded that assuming, without admitting, that there was a custom of pre-emption, the claim was bad for partial pre-emption, in as much as the plaintiff's legal position was the same, vis-a-vis both the plots sold. Lastly it was urged that the consideration entered in the sale-deed represented the true consideration. It must be stated at the outset that the custom alleged is not an ordinary custom. In the first place, it is not a custom based upon an entry in the wajib-ul-arz; secondly, even as a custom, based upon the Muhammadan law, it involves a slight departure from it, in that the plaintiff's case is that he is entitled to come to Court on the basis of a custom founded upon the Muhammadan law without having to comply with the formal demands essential under that law.

(2.) One of the defendants in the suit was a man named L. Shankar Lal, who had brought a rival suit for pre-emption which was dismissed on the basis of a compromise. He may, therefore, be dismissed from consideration. In order to appreciate the position of the parties and the legal incidents of this somewhat unusual case, it is necessary to set forth its facts in some detail. Shamli is divided into two parts. There is a drain which runs across the whole of the town, dividing it into eastern and western parts. It was brought under the Town Areas Act on 21st January 1882, and its limits were defined on 28 January 1882. Old Shamli, i.e., the populated part of it, lies to the west. The eastern part is one of recent growth. The plaintiff's case was that the custom of pre-emption prevailed in the whole of Shamli; the defendants, on the other hand, while conceding that it prevailed in the western part, contended that it had no existence in the eastern part of it. The learned Munsif found that the custom of pre-emption in the eastern part had not been established. He found further that the real consideration was Rs. 4000 and that the value of the plot in suit was Rs. 1750. He also found that the defendants, in the event of the plaintiff's success, would be entitled to a further sum of Rs. 2600 for making improvements on the land. The suit, in his view, was not vitiated by the principle of partial pre-emption. In the result, he dismissed the suit on appeal the learned Civil Judge of Muzatfarnagar, while agreeing with the learned Munsif that there was no custom of pre-emption in the eastern half ofShamli, disagreed with him on the question of partial pre-emption. He found that the claim was bad by reason of that principle. He has, therefore, affirmed the decree of the Court of first instance. The plaintiff has come in second appeal. There is no dispute with regard to consideration. The argument before me has centred round two questions whether the custom of preemption existed in the eastern section of Shamli and whether the principle of partial pre-emption came in the plaintiff's way.

(3.) The geographical position of the two plots sold, as also of the whole of Shamli, and the history of its eastern section, are factors to be considered in arriving at a decision of the case. There is, as stated above, a drain dividing the whole town into two parts. There is also a road running through it. How this road has affected the two plots sold and the third one, which is the foundation of the plaintiff's claim, it is not necessary to discuss. Suffice it to say at this stage that the road has intersected the two plots. The history of the town may, as described by the learned Munsif, be stated in just a few words. The eastern section claimed an ancient population. The eastern section had only a Government building and a temple, far away from the town and all the land was under cultivation. A railway station was established about 1905 or 1906. The advent of the railway brought, in its train, prosperity, with the result that the town began to grow in importance as a business centre. It became an important grain market. Shops and buildings grew up, but all, on the findings, within seven or eight years before 1941, the year of the suit. To sum up the finding of the learned Munsif, which has not been disturbed by the lower appellate Court: The result is that it is proved beyond doubt that the entire Abadi to the east of the Khala is a new growth which has come into existence on account of business prosperity resulting from the opening of the railway and other means of quick transportation and also in the coming into existence of electric power fifteen or seventeen years ago.