Jharkhand High Court
Md. Hanif vs Md. Taufiq Alam on 16 December, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No. 127 of 2013
Md. Hanif .... .... Appellant
Versus
Md. Taufiq Alam .... .... Respondent
------
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
------
For the Appellant : M/s Jai Prakash Jha, Sr. Advocate
Aishwarya Prakash & Ashish Kumar Thakur, Advocates
C.A.V. ON 02.12.2021 PRONOUNCED ON 16 / 12 / 2021
1. The appellant is the plaintiff who has preferred the second
appeal under Section 100 of the CPC against the judgment and decree of
reversal passed by the Principal District Judge, Dumka in Title Appeal
No.9/2012
2. Plaintiff filed Suit in exercise of the peremptory right to
purchase the suit property and for a decree directing the Defendant No.1
to execute sale deed of the schedule 'B' property in favour of the plaintiff
and to give possession.
3. The case of the plaintiff in brief is that both the parties are
Mohammedan by sect Sunni. The Plaintiff Md. Hanif and Defendant
No.2Bibi @ Buchun are full brother and sister. Defendant number 1 is a
rank outsider having no relationship with the plaintiff and Defendant
No.2. The plaintiff acquired the schedule A property by registered sale
deed and is residing therein, and Defendant No.2 also acquired the suit
property mentioned in schedule B, vide registered sale deed in the year
1983 towards the North of schedule A property in which she was residing.
Rafique Alam purchased schedule C property towards south of schedule A
property and thus Schedule A property is situated in the middle between
schedule B and C property.
It is further averred that Defendant No.1 had no land or house
abutting the schedule C property. Defendant No.2 sold her property to
Defendant No.1 secretly without giving any information to the plaintiff by
registered sale deed No. 85 in the year 2008 in respect of the Schedule B
property and came in possession of the same. Plaintiff had made repeated
requests to Defendant No.2 to convey the Schedule B property and
execute registered sale deed in his favour but she failed and collusively
sold the same to Defendant No.1. The present suit has been filed asserting
the peremptory right of the plaintiff to purchase the schedule B property.
4. The main plea of the defence raised in the written statement is
that the three residential houses referred to in the plaint as Schedule A, B
and C are distinctly separate houses with no common appendage, vicinage
and no common participation in usage on actual possession and
enjoyment by their absolute owners, hence none of these houses attract
right to pre-emption with the statutory or customary. The Defendant No.2
proposed to sell the suit property, but the plaintiff never showed any
interest or willingness to purchase the same. It was against this backdrop
that the Defendant No.2 entered into an agreement with Defendant No.1
on 21.6.2008 by accepting an amount of Rs.20,000 as advance
consideration amount for the purchase of the said property. This
agreement was within the knowledge of the plaintiff and he never raised
any objection to it. Now the suit property has been purchased by
Defendant No.1 on payment of valid valuable consideration amount and
he is in actual possession and enjoyment of the same which has been duly
mutated in Mutation Case No.58/2008.
5. On the main issue whether plaintiff had right of pre-emption in
respect of suit property or not the learned Trial court held that the plaintiff
had sought the relief of peremptory right to repurchase the suit property
described in Schedule B of the plaint and he was the owner of adjoining
property schedule A. The plaintiff fulfilled the requirement of Article 231
of Mohammedan Law by Mulla for claiming pre-emption with regard to
suit property.
6. The Court of first appeal set aside the judgment and decree
passed by the learned Court below on the ground that plaintiff had not
complied with the provision of Article 236 of the Mohammedan Law
which requires that the right of pre-emption is to be exercised by declaring
the intention to assert the right immediately on receiving information of
the sale as per the formalities called talab-i-mowasibat.
7. The second appeal has been preferred mainly on the ground that
lower appellate court has committed grave error in law misinterpreting the
provisions of Articles 231, 232, 233 and 237 of the Mohammedan Law.
Exhibits-1, 1-A and 1-B have not been properly appreciated.
8. Under Article 231 of Mahomedan Law the following three class
of persons and no others, are entitled to claim pre-emption, namely:
i. a co-sharer in the property [shafi-i-sharik]
ii. a participator in immunities and appendages, such as the right of way
to discharge water [shafi-i-khalit]; and
iii. owners of adjoining immovable property [shafi-i-jar], but not the
tenants, not persons in possession of such property without any
lawful title. A wakif or mutwalli is not entitled to pre-empt, as the
wakf property does not vest in him.
9. From the pleadings of the parties, it is evident that the plaintiff
and Defendant No.2 the vendor of the suit property, both had purchased
their respective properties fully described in Schedule A and C of the
plaint. The present case has been filed to exercise right of pre-emption
with respect to Schedule B property on ground of vicinage as the plaintiff
had adjoining plot and the vendor Defendant No.2 was his own sister,
whereas Defendant No.1 was an outsider. It is not the case of the Plaintiff
that it was his ancestral property and he had any antecedent right or
interest over it. The learned appellate Court has assigned specific reasons
for not accepting the right of pre-emption as the necessary formalities
were not observed.
10. In A. Razzaque Sajansaheb Bagwan v. Ibrahim Haji Mohd.
Husain, (1998) 8 SCC 83 at page 84following the ratio decided in Bhau
Ram v. Baij Nath Singh [AIR 1962 SC 1476 : 1962 Supp (3) SCR 724]
and in Sant Ram v. Labh Singh [AIR 1965 SC 314 : (1964) 7 SCR 756]it
has been held that the law of pre-emption based on vicinage "Shafi-i-jar"
is void.
It has been held in Mohd. Ismail v. Abdul Rashid, 1955 SCC
OnLine All 149 : 1955 All LJ 727
29. Inasmuch as the right of preemption is "the disseizing another of
his property merely in order to prevent apprehended inconveniences" it
is considered to be "a feeble right" by Hanafi Mohammedan Lawyers,
vide, Hamilton's Hedaya, Vol. Ill, p. 568, and for this reason the right is
circumscribed or hedged in by certain conditions the fulfillment of
which is essential for the enforcement of the right in a court of law. The
first of these conditions is that the pre-emptor must himself be the
owner of the property by virtue of which he claims the right at the date
of the sale. The second condition is that he must make known his
intention to preempt without delay by making the two demands which
are technically called 'Talab Mawasibat' or immediate claim and
'Talab Ishhad' or claim by confirmation before witnesses. The Talab
Mawasibat is made immediately when the preemptor is apprised of the
sale being concluded. If he makes the slightest delay his right is gone.
He must further make the second demand in the presence of witnesses
against the purchaser if he is still in possession of the land or against
the seller or upon the spot. The third condition is that he must continue
to possess his right of preemption so long as a decree is not passed by
the Court in his favour, for if he loses his right before that event
happens, he cannot claim to be entitled to a decree.
The plaintiff have not mentioned as to how the pre-emptive
right has been acquired. The only statement that the plaintiffs have pre-
emptive right is not sufficient to entertain the suit. Just being owner of the
adjacent property does not give rise to pre-emptive right based on
vicinage. The defendants have a constitutional right to property and to
deal with the same.
In view of the above stated position of fact and law, I do not
find any illegality in the impugned judgment of the first appellate Court so
as to raise a substantial question of law for hearing the instant second
appeal.
In the result, the appeal stands dismissed at the admission stage
itself.
(Gautam Kumar Choudhary, J.)
Jharkhand High Court, Ranchi
Dated the 16th December, 2021
NAFR / AKT
