KHAIRA KAMMAN Vs. SHAHAB DIN

JUDGEMENT

(1.) This second appeal has arisen under the following: circumstances On 1st December 1942, Niaz Ahmad defendant 7 sold the land in dispute to defendants 1 and 2 for a consideration of Rs. 1,300. The vendees re-sold the land to defendant 6. On 23 March 1943, the suit giving; rise to the present second appeal was instituted by Shahab Din, a collateral of Niaz Ahmad vendor, for possession of the aforesaid land by means of pre-emption. The suit was resisted by defendant 6 on the plea that the plaintiff's right of preemption was not superior to his own.

(2.) It was alleged by the aforesaid defendant that the land in suit originally belonged to his collaterals Pir Bakhsh and Himan who gifted the same to Mt. Umri, daughter of Himan; that the aforesaid Mt. Umri in turn accelerated the succession of her son Niaz Ahmad vendor by making a gift in his favour; that the land in the hands of Pir Bakhsh and Himan was ancestral qua him; and that, accordingly, on the extinction of the line of the donee, it was to revert to the donors line. It was further alleged by him that in default of nearer reversioners of the donor entitled to reversion of the suit land on the extinction of donee's line, the land would devolve upon him in preference to the heirs and collaterals of Niaz Ahmad.

(3.) The two Courts below have repelled the contentions of defendant 6 and have decreed the plaintiff's claim. They have held that although ⅘th of the land in suit has been proved to be ancestral in the hands of Pir Bakhsh and Himan qua defendant 6, the gift in favour of Mt. Umri daughter of Himan having been made in lieu of services, there can be no reversion to the donor's line on the extinction of the line of the donee, and that, under the circumstances, the plaintiff, as a collateral of Niaz Ahmad, had a right of preemption superior to that of defendant 6. The latter, feeling aggrieved from the decree passed in the plaintiff's favour, has come up in second appeal to this Court.