AHMAD HAKIMULLAH Vs. MOHAMMAD HIKMAT ULLAH

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for pre-emption under the Mahomedan Law. There were two rival suits, one of which stands dismissed and has not come up before us. We are here concerned with the suit brought by the plaintiff Hakim-Ullah. The Court of first instance believed the plaintiff's evidence which was to the effect that as soon as he heard of the sale he shouted out: "I am the pre-emptor and I demand pre-emption." After that he took two witnesses, Muhammad Ibrahim and Munshi Farhat-Ullah, who were present at the time when he made the first demand, to the diwan-khana of the vendees, and addressing all the vendees he made a second demand in the following words: I am the pre-emptor and I demand pre-emption from all of you. As soon as I heard of the sale there and then I fulfilled the condition of pre- emption. After deducting the price of the materials which you have realized I would pay the price in full. Please take it from me and execute a sale deed.

(2.) The learned Munsif held that the plaintiff had, in making his second demand, referred to the first demand and that inasmuch as he had taken the witnesses with him it was not necessary for him specifically to ask them to bear testimony.

(3.) The lower appellate Court has come to a contrary conclusion. Relying on the case of Ganga Prasad V/s. Ajudia Prasad [1905] 28 All. 24 it has been held that the omission of the plaintiff to invoke the witnesses is fatal. In our opinion this view was not correct. In the case relied upon by the lower appellate Court the plaintiff had neither taken the witnesses with him to the spot nor had he asked them to be witnesses to the demand. These persons simply happened to be present at the time when he made the second demand. It was, therefore, held that the second demand was invalid. In the present case the plaintiff had actually made the first demand in, the presence of the witnesses and had asked them to accompany him to the vendees in order that a second demand might be made in their presence. They both stated that they heard the second demand being made and their attention was attracted to it. The mere omission to ask them in express terms to bear testimony would, therefore, not be fatal.