PHUL MOHAMMAD KHAN Vs. QAZI KUTUBUDDIN

JUDGEMENT

(1.) This second appeal arises out of a suit for pre-emption filed by the plaintiff which was dismissed by the trial Court, but partly decreed by the lower Appellate Court. The defendants have come up in appeal before us. The facts out of which this appeal arises are as follows: The plaintiff's case is that he and defendant 3 are full brothers but they are on bad terms. Defendant 3 sold his properties to defendants 1 and 2 under a kebala dated 25 January 1930 without the knowledge of the plaintiff. He learnt of this on 26 January 1930 at 2 A.M. in the night at Gaya. As soon as he learnt of the sale he performed the ceremony of talab-i-mowasibat saying that he had a share and right of pre-emption in Kazipura Tauzi No. 1437 joint and separate account No. 1 and in Bhojpur Jadid Tauzi No. 1296, he was claiming pre-emption and was ready to pay the price mentioned in the kebala in respect of the shares claimed. He started that very day and reached Dumraon that very noon. From there he went to Kazipura and in the presence of respectable persons performed the ceremony of talab-i-ishhad saying that he had a share in these two tauzies and so he had a right to pre-empt. He also informed the people there that he had already performed the ceremony of talab-i- mowasibat. From there he went to Bhojpur and performed the ceremony of talab- i-ishhad. After performing these ceremonies he offered the price of the shares to defendants 1 and 2, but they refused and therefore the plaintiff filed the suit. It appears that along with the sale of these two tauzis some mokarrari as well as raiyati lands were transferred by the same transaction. The plaintiff claimed right to pre-empt in regard to the milkiat rights only. Defendant 3 did not appear to contest the suit but defendants 1 and 2 filed written statement. They denied many of the allegations made in the plaint and said that the two ceremonies of talab-i- mowasibat and talab-i-ishhad were never performed and also raised the question that the plaintiff was not entitled to pre-empt in regard to a part of the properties sold. These were their chief contentions apart from the usual questions of estoppel and limitation.

(2.) The trial Court held that the ceremonies were not performed. It further held that as the ceremonies were not performed with regard to all the properties transferred, the plaintiff could not be said to have performed the ceremonies in accordance with law. On these findings the trial Court dismissed the suit of the plaintiff. The lower Appellate Court however believed the evidence of the plaintiff and held that the ceremonies were performed as alleged by him.

(3.) The next question for determination was whether the plaintiff's suit was maintainable. In the course of argument it was stated before the lower Appellate Court that the plaintiff would have a right to pre-empt for a proprietary interest only if it was found that a right of preemption did not accrue on transfer of raiyati lands. The lower Appellate Court referred to Ch. 28 of Ameer Ali's Mahomedan Law Mohammad Jamil V/s. Khub Lal Raut, AIR 1921 Pat 164 and Dhirakashan Singh V/s. Triloki Prasad Singh AIR 1923 Pat 217and held that the plaintiff was not entitled to preempt with regard to the raiyati lands. That being so, the plaintiff's suit was maintainable in respect of such properties only in respect of which the right of pre- emption accrued. The lower Appellate Court ordered that if the plaintiff deposited Rs. 1,700 within a period of three months to the credit of defendants 1 and 2, a decree for possession of the property in suit would be finally passed in his favour; and if he deposited only Rs. 1,100 a decree declaring his right to possession would be passed but he would not be able to get possession until he deposited Rs. 550 more and in case he made no deposit at all within the time allowed the plaintiff's suit would stand dismissed. I may note here that Rs. 550 represented the plaintiff's share of the encumbrances on the properties in suit after their purchase.