[Cites 5, Cited by 0]
Karnataka High Court
Keshavaro S/O Narsingrao Talghatkar vs Abdul Sukur S/O Late Mastansab Miyan ... on 18 December, 2025
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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RSA No. 200418 of 2015
HC-KAR ®
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 18TH DAY OF DECEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE M.G.S.KAMAL
REGULAR SECOND APPEAL NO.200418 OF 2015
(DEC/INJ)
BETWEEN:
1. KESHAVARAO
S/O. NARASINGRAO TALGHATKAR,
AGED ABOUT 63 YEARS, OCC: AGRICULTURE,
R/O. HALLIKHED (B), TQ. HUMANABAD,
DIST. BIDAR-585414.
2. MEHERUN BEE
W/O. LATE GHUDUSAB MIYAN BHAI,
AGED ABOUT 55 YEARS, OCC: AGRICULTURE,
R/O. HALLIKHED (B), TQ. HUMANABAD,
DIST. BIDAR-585414.
Digitally signed ...APPELLANTS
by SACHIN
Location: HIGH (BY SRI KADLOOR SATYANARAYANACHARYA, ADVOCATE)
COURT OF
KARNATAKA AND:
1. ABDUL SUKUR
S/O. LATE MASTANSAB MIYAN BHAI,
SINCE DEAD BY HIS LRS.
1A) SMT. REEZWANA BEE
W/O. LATE ABDUL SUKUR,
AGE: 58 YEARS, OCC: HOUSEHOLD.
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RSA No. 200418 of 2015
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1B) FIROZ S/O. LATE ABDUL SUKUR,
AGE: 42 YEARS, OCC. BUSINESS,
1C) HAJIMIZAN S/O. LATE ABDUL SUKUR,
AGE: 42 YEARS, OCC. BUSINESS,
ALL R/O. NEAR KALI MASJID,
OLD PANCHAYAT AREA,
PET UDAYA NAGAR, HALLIKHED (B),
TQ. HUMANABAD, DIST. BIDAR-585414.
...RESPONDENT
(BY SRI MEER MOHAMMAD ALI, ADVOCATE
FOR R1(A) TO R1(C))
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC PRAYING TO ALLOW THIS APPEAL AND
SET ASIDE THE JUDGMENT AND DECREE DATED 16.10.2015
PASSED IN R.A.NO.86/2013 ON THE FILE OF THE II ADDL.
DISTRICT AND SESSIONS JUDGE, BIDAR, SITTING AT
BASAVAKALYAN, CONFIRMING THE JUDGMENT AND DECREE
DATED 14.08.2013 PASSED IN O.S.NO.54/2011 ON THE FILE
OF THE SENIOR CIVIL JUDGE AT HUMNABAD AND TO PASS
ANY OTHER APPROPRIATE ORDERS.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 24.10.2025, COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
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RSA No. 200418 of 2015
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CORAM: HON'BLE MR. JUSTICE M.G.S.KAMAL
CAV JUDGMENT
This regular second appeal is by the defendants
aggrieved by the judgment and decree dated 14.08.2013
passed in O.S.No.54/2011 on the file of Senior Civil Judge,
Humnabad (hereinafter referred to as the 'trial Court'),
which is confirmed by the judgment and order dated
16.10.2015 passed in R.A.No.86/2013 by the Court of the
Additional District and Sessions Court, Bidar sitting at
Basavakalyan (hereinafter referred to as the 'appellate
Court').
2. Subject matter of the suit is land bearing
Sy.No.583, totally measuring 03 acres 27 guntas situated
at Hallikhed (B) village [hereinafter referred to as the
'subject land' for brevity].
3. The case of the plaintiff is that;
3.1. The said subject land originally belonged to one
Mastansab, who passed away leaving behind his sons
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namely, Abdul Sukur the original plaintiff and
Ghudusab as his legal heirs. That the original plaintiff
and Ghudusab were in joint possession and
enjoyment of the entire extent of the subject land.
Ghudusab passed away on 10.09.2003 leaving
behind his wife Smt.Meherun Bee - defendant No.2
and two sons. Upon the demise of Ghudusab, original
plaintiff alone has been cultivating the suit land being
in exclusive possession and enjoyment of the same
along with defendant No.2.
3.2 During his lifetime, deceased Ghudusab was residing
at Hyderabad along with his wife - defendant No.2
and his sons, in the house of mother of defendant
No.2. Ghudusab was visiting Hallikhed (B)
occasionally with his family. Original plaintiff who was
cultivating the subject land was giving half of the
yield and income to deceased Ghudusab. That there
was no partition of the subject land and the same
has been in possession of the family for over 50
years.
3.2. That recently defendant No.2 in collusion with the
revenue officials and active assistants of defendant
No.1 had got her name mutated in the revenue
records showing herself to be the owner and
possessor to an extent of 01 acre 33 guntas out of 3
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acres 27 guntas of the subject land. Such mutation
was effected with an ill-intention of causing loss and
injury to the plaintiff.
3.3. The defendant No.1 without the knowledge of the
original plaintiff has obtained registered deed of sale
executed on 15.07.2006 in his name from defendant
No.2 for a consideration of Rs.1,46,000/- allegedly
paid prior to the registration of the said document.
3.4. Plaintiff learnt about the said illegal transaction when
he along with his son Fairoz were ploughing the
subject land on 07.12.2006 by using the tractor
belonging to one Sri Revanappa Police Patil. That at
about 09.30 a.m. on 07.12.2006 defendant No.1
came to the spot and claimed that he had purchased
from defendant No.2 for valuable sale consideration
Rs.1,46,000/-southern portion of the subject land
along with half of right to irrigate from of the right to
irrigate from the well and to the produce from the
tamarind tree. That defendant No.1 attempted to
prevent the plaintiff from ploughing the southern half
portion of the land.
3.5. Plaintiff called the neighboring landowners namely,
Sangappa S/o Shankereppa Mali Patil, Shivaraj S/o
Shankereppa Yelagundi and several other local
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persons of Hallikhed (B) and demanded defendant
No.1 that he being the co-owner and the co-sharer
along with defendant No.2 was entitled to purchase
the share of defendant No.2 and he was ready to buy
the same by paying the entire consideration of
Rs.1,46,000/-. However, defendant No.1 refused the
said demand made by the plaintiff on 08.12.2006.
3.6. Plaintiff came to the Sub-Registrar Office and
obtained certified copy of sale-deed and went to
Hyderabad to enquire about the execution of deed of
sale by her in favour of defendant No.2 without his
knowledge as he was ready to purchase the same at
the same value and requested defendant No.2 to join
with defendant No.1 in conveying the land in his
favour as he was ready to purchase the same. That
he made the said request in the presence of
Sangappa Mali Patil and Shivaraj Yelagondi and
others at Hyderabad. Defendant No.2 refused to
comply with the demand made by the plaintiff in
exercise of his right of pre-emption.
3.7. Plaintiff again approached defendant No.1 on
23.12.2006 offering to purchase the portion of the
property for Rs.1,46,000/- and requesting him to
execute registered deed of sale in his favour along
with defendant No.2 which was also refused. Giving
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rise to cause of action for the suit. Hence the suit
seeking following reliefs:
"a) That, a decree be kindly passed declaring that
the above named plaintiff is entitled to exercise
his right of Pre-emption (Shuffa) to re-purchase
the southern half portion of the land measuring
01 acres 33 guntas R.A. of Rs. 6.07 paise out of
the suit survey number 583 total measuring 3
acres 27 guntas R.A. of Rs. 12.14 paise, situated
at village Hallikhed-B taluka Humnabad District
Bidar from the defendants no.1 & 2 jointly or
severally by way of giving the consideration
amount of Rs. 1,46,000/-as mentioned in the
suit sale deed bearing document no. C-1372/06-
07 dated 15/07/2006 Registered in the office of
the Sub-Registrar Humnabad as per law
immediately.
b) That, a further decree of the nature of Mandatory
injunction be kindly passed directing the above
named defendants no.1 & 2 jointly and severally
to execute the necessary Registered sale deed in
respect of the southern portion of 01 acre 33
guntas R.A. of 6.07 paise land out of suit survey
number 583 in the name of the above named
plaintiff by receiving amount of Rs. 1,46,000/-
with all the necessary stamp duty, registration
charges etc., to be born for the same exclusively
by the plaintiff named herein above.
c) That, a further necessary decree be also kindly
passed, in the event of failure on the part of the
defendants no.1 & 2 jointly and severally to
comply the above terms of decree, enabling to
the above named plaintiff to get execute the
necessary sale deed of the southern half portion
of the land measuring 01 acres 33 guntas R.A of
Rs. 6.07 paise out of Suit survey number 583, as
mentioned in the suit sale deed bearing
document no. C-1372/06-07 registered in the
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office of the Sub-registrar Humnabad dated
15/07/2006 in the name of the above named
plaintiff of this suit through the Commissioner to
be appointed for that purpose by this Hon'ble
Court with the required expenses to be born by
the plaintiff towards stamp duty and registration
charges etc.,
d) Any other equitable reliefs be also kindly granted
to which the plaintiff is entitled."
4. Defendants in their written statement denying
the maintainability of the suit contented that:
4.1. The husband of defendant No.2, Ghudusab was the
exclusive owner and possession of the southern
portion of the subject land and after his demise the
same has been mutated in the name of defendant
No.2 in accordance with law. Plaintiff was never the
joint owner along with deceased Ghudusab. Plaintiff
has got his separate share in the subject land while
the husband of defendant No.2 was having his
separate share. The records of rights never showed
joint ownership of the plaintiff and the deceased
Ghudusab at any time.
4.2. That upon the demise of husband of defendant No.2,
plaintiff had become dishonest and with an intention
of harassing the defendant No.2, as she was residing
at Hyderabad, filed the false suit. The plaintiff and
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the husband of the defendant No.2 were in separate
and exclusive possession and enjoyment of their
respective shares. However, a well situated in the
subject land was in joint possession and enjoyment
of the plaintiff and his deceased brother, each having
half share right, title, interest therein. Plaintiff is in
possession of the northern side of the subject land
while the southern portion of the subject land
belonged to deceased Ghudusab.
4.3. That upon the demise of husband of defendant No.2,
she having conveyed southern portion of the subject
land in favour of defendant No.2 to the knowledge of
the original plaintiff, she has left the village of
Hallikhed (B) for the further education and
employment of her sons at Hyderabad. Hence,
sought for dismissal of the suit.
5. Based on the pleadings, trial Court framed the
following issues:
1. Whether the plaintiff proves that there was no
partition in the suit Sy.No.No.583, measuring
3 acres 27 guntas as alleged ?
2. Whether the plaintiff further proves that he has
got right of preemption to repurchase the
southern half portion of the land measuring 01
acre 27 guntas of village Hallikhed-B,
Tq. Humnabad as alleged ?
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3. Whether the plaintiff further proves that he is
entitled for mandatory injunction as sought for in
the suit ?
4. Whether the defendant Nos.1 and 2 prove that
the defendant No.1 got valid title to the suit land
through registered sale deed bearing document
No.1372/06-07 dated 15.07.2006 for valid
consideration of Rs.1,46,000/- executed by
defendant No.2 as alleged ?
5. Whether the defendants further proves that the
suit of the plaintiff is false and fictitious and
thereby they are entitled for compensatory costs
of Rs.10,000/- from the plaintiff as alleged ?
6. What order or decree ?
6. Plaintiff examined himself as PW-1 and another
witness by name Krishna as PW-2 and exhibited 11
documents marked as Ex.P1 to P11. Four witnesses have
been examined on behalf of defendants as DW-1 to DW-4
and have exhibited 7 documents marked as Ex.D1 to
D7(a) to (c). On appreciation of the evidence, the trial
Court answered Issue Nos.1 to 3 in the affirmative, Issue
Nos.4 and 5 in the negative and consequently, decreed the
suit, directing the defendants and the legal heirs of
deceased Ghudusab to execute registered deed of sale in
favour of the plaintiff by receiving Rs.1,46,000/- which
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was deposited before the Court, holding that the plaintiff is
having right of preemption to re-purchase the suit land
within two months from the date of the order.
7. Being aggrieved, defendants preferred a regular
appeal in R.A.No.86/2013. Considering the grounds urged,
the first appellate Court framed the following points for its
consideration :
1. Does appellants prove that the finding of trial
Court that the defendants failed to prove the
partition in the suit Sy.No.No.583, measuring 3
acres 27 guntas is illegal one ?
2. Does the trial Court judgment and decree need
to be interfered with ?
3. What order ?
On re-appreciation of evidence, answered point Nos.1 and
2 in the negative and consequently dismissed the appeal
confirming the judgment and decree passed by the trial
Court. Being aggrieved, defendants are before this Court.
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8. This Court by order dated 29.05.2024 admitted
the aforesaid appeal for consideration on the following
substantial questions of law :
1. Whether the required formalities/conditions
precedent to the exercise of the right preemption
by making necessary demands as per the
provisions of Section 231 and 236 of the
Mohomedan Law, which are called as talab-i-
mowasibat and talab-i-ishhad have been
complied?
2. Whether the Courts below have fell in error in
decreeing the suit of the plaintiff holding that the
plaintiff is entitled to exercise his right of
preemption to repurchase the southern half
portion of land measuring 1.33 guntas?"
9. Sri Kadloor Satyanarayanacharya learned
counsel appearing for the appellant reiterating the grounds
urged in the memorandum of appeal submitted that:
9.1. The trial Court and the first appellate court have
grossly erred in decreeing the suit without adverting
to the requirement of strict compliance to the
provisions of Section 231 and 236 of the Mulla's
Principles of Mahomedan Law.
9.2. That the trial Court and the first appellate Court
have erred in not appreciating the evidence made
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available on record, which categorically proved that
the plaintiff and the husband of the defendant No.2
were not in joint possession and enjoyment of the
property as claimed. He refers to paragraphs 4, 6,
14, 16, 23 and 27 of the deposition of PW-1 to
contend that plaintiff was in possession and
enjoyment of northern half portion of the property
while husband of defendant No.2, Ghudusab was in
cultivation and possession of southern half of the
property. That the joint cultivation was only till the
marriage of Ghudusab with defendant No.2.
9.3. That the records of rights would indicate the
property was mutated jointly in the name of plaintiff
and Ghudusab. Later it was made in the name of
plaintiff alone. That there is definite bifurcation of
the suit land into northern and southern portion.
9.4. The defendant No.1 is not a stranger to the parties,
as he is, admittedly the owner of the land situated
on the southern side of the subject land.
9.5. That there has been no demand as contemplated
under Sections 231 and 236 of Mulla's Principles of
Mahomedan Law.
9.6. That the suit is also bad in law as sons of Ghudusab
have not been made parties to the suit. Exercise of
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right of pre-emption can only be made by a
co-owner by making a demand against the other
co-owners. Defendant No.2 being the wife of
Ghudusab is only entitled for 1/8th share in the
southern portion of the subject land, in terms of the
principles of Muslim Personal Law of Inheritance. As
such, there cannot be a demand for exercising right
of pre-emption in respect of part of the land.
Consequently, there is no compliance of the law
requiring demand to be made in respect of the
entire portion of the land.
9.7. The evidence of PW-2 is of no consequence as the
said witness apart from being a chance witness, has
pleaded his ignorance with regard to the contents of
his affidavit filed in lieu of examination-in-chief. That
he has clearly admitted he not visiting Hyderabad to
meet defendant no.2 as sought to be contented by
plaintiff, demanding execution of deed of sale in
furtherance to exercise of his right of pre-emption.
No witnesses have been examined to prove the
exercise of right of pre-emption by the plaintiff
demanding execution of sale-deed in respect of
southern portion of the subject land.
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9.8. In support of his submission, the counsel relied upon
the following judgments:
(i) Radhakisan Laxminarayan Toshniwal vs.
Shridhar Ramchandra Alshi and others
reported in AIR 1960 SC 1368; and
(ii) Maheboobsab Buransab Maniyar vs.
Mohadinsab Maheboobsab Maniyar reported
in ILR 2012 (1) KAR 1192.
Hence seeks for substantial question of law to be
answered in favour of the appellants/defendants.
10. Per contra, Sri Meer Mohammad Ali, learned
counsel appearing for plaintiff/respondent submitted that:
10.1. There has been no partition of the subject land
anytime during the lifetime of husband of defendant
No.2 or subsequent thereof. That the records of right
produced at Ex.D-2, indicate that name of
Mastansab, the father of plaintiff and husband of
defendant No.2 being reflected for the years 1958-
1961. Thereafter, name of plaintiff and Ghudusab
was reflected for the year 1962-63. That there are no
revenue records between the year 1963 to 2000. The
records of right produced at Exs.P3 to Ex.P7 for the
years 2006 and 2007 reflect only name of plaintiff.
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Name of Ghudusab has been reflected on and after
15.07.2006 at the instance of defendant No.2.
10.2. Defendant No.2 alone has no right to alienate the
entire property. The conveyance of the land in favour
of defendant No.1 by defendant No.2 is defective.
Since there has been no partition, and the subject
land has remained in common, sons of deceased
Ghudusab need not be made parties to the suit.
10.3. That there has been a categorical admission by
defendant No.2 in her deposition regarding plaintiff
and defendant No.2 cultivating the land together and
there being no bifurcation. No documentary evidence
is produced by the defendants to evidence partition
of the property into northern and southern portions.
10.4. That merely because defendant No.1 owned his land
on the southern side, he would not get any
prerogative to purchase the property denying the
statutory right of preemption available in favour of
the plaintiff.
10.5. There is no suggestion made to PW-1 or to PW-2,
denying the circumstance of plaintiff making demand
on 07.12.2006, 08.12.2006 and 23.12.2006 in
exercise of his right of preemption. In fact, DW-1 has
admitted the circumstance of such demand being
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made by the plaintiff in his deposition. Similarly,
defendant No.2 has also admitted the demands that
were made by the plaintiff.
10.6. The ground of non impleadment/non-joinder of
parties, namely sons of Ghudusab, is raised for the
first time in this appeal and the same has neither
been pleaded nor urged before the trial Court and the
first appellate Court.
10.7. Plaintiff has pleaded that tenancy in common which
has been accepted by the trial Court and the first
appellate Court. There has been complete compliance
of the provisions of Section 236 of Mulla's Principles
of Mahomedan Law. The trial Court having adverted
to factual and legal aspect of the matter have rightly
decreed the suit which is confirmed by the first
appellate Court and no substantial question of law
therefore would arise for consideration. Hence seeks
for dismissal of the appeal.
11. Heard. Perused the records.
12. Since, the suit is one seeking declaratory relief
regarding plaintiff's entitlement to exercise his right of
pre-emption and for mandatory injunction directing
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defendants to execute deed of sale in respect of portion of
subject land, appropriate to refer to the provisions of
Sections 231, 236 and 245 of the Mulla's Principles of
Mahomedan Law which are extracted hereunder:
""231. Who may claim pre-emption : The
following three classes of persons and no others, are
entitled to claim pre-emption, namely:-
(1) a co-sharer in the property [shafi-i-sharik];
A mukarraridar (lessee in perpetuity) holding under a
co-sharer has no right to pre-empt as against
another co-sharer ;
(2) a participator in immunities and appendages,
such as a right of way or a right to discharge water
[shafi-i-khalit]; and
(3) owners of adjoining immovable property [shafi-i-
jar], but not their tenants, nor persons in possession
of such property without any lawful title [Baillie,
481]. A wakf or mutawalli is not entitled to pre-
empt, as the wakf property does not vest in him.
The first class excludes the second, and the
second excludes the third. But when there are two or
more pre-emptors belonging to the same class, they
are entitled to equal share of the property in respect
of which the right is claimed [Baillie, 500].
Exception : The right of pre-emption on the third
ground, viz., that of vicinage does not extend to
estates of large magnitude, such as villages and
zamindaris, but is confined to houses, gardens, and
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small parcels of land. The right, however, may be
claimed by a co-sharer."
"236. Demands for pre-emption : No
person is entitled to the right of pre-emption unless-
(1) he has declared his intention to assert the right
immediately on receiving information of the sale.
This formality is called talab-i-mowasibat (literally,
demand of jumping, that is, immediate demand):
and unless
(2) he has with the least practicable delay affirmed
the intention, referring expressly to the fact that the
talab-i-mowasibat had already been made, and has
made a formal demand-
(a) either in the presence of the buyer, or the
seller, or on the premises which are the subject
of sale and
(b) in the presence at least of two witnesses.
This formality is called talab-i-ishhad (demand
with invocation of witnesses.
Explanation 1. The talab-i-mowasibat should be
made after the sale is completed. It is of no effect if
it is made before the completion of the sale [s.232].
Explanation II - It is not necessary that the talab-i-
mowasibat or talab-i-ishhad should be made by the
pre-emptor in person. It is sufficient if it is made by
a manager or a person previously authorized by the
pre-emptor to make the demand. When the pre-
emptor is a minor, his de facto may make a demand
on his behalf. A demand made by the father or facto
guardian brother of the pre-emptor is not sufficient,
even if he has a right to pre-empt, unless he has
been previously authorized to make the demand.
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When the pre-emptor is at a distance, the demand
may be made by means of a letter.
Explanation III - If the talab-i-ishhad is made in the
presence of the buyer, it is not necessary that the
buyer should then be actually in possession of the
property in respect of which pre-emption is claimed.
Explanation IV - When two or more persons claim to
pre-empt, each one of them should make the
demands, unless one of them has also been
authorized by the other to do so, and he makes the
demands on their behalf also. If a suit is brought by
several persons claiming to pre-empt, and only one
of them has made the demand on his own behalf the
suit will proceed as regards him, but it must be
dismissed as to the rest.
Where there are two or more buyers, and the talab-
i-ishhad is not made in the presence of the vendor or
on the property sought to be pre-empted, the
demand must be made to all the buyers. If it is
made only to some of them, the shares of those
buyers only can be pre-empted.
Explanation V. - No particular formula is necessary
either for the performance of talab-i-mowasibat or
talab-i-ishhad so long as the claim is unequivocally
asserted."
"245. Suit for pre-emption: What the
claim must include.- where the property is sold to
a single buyer, a person claiming to pre-empt must
pre-empt the whole interest comprised in the
transfer, to the buyer. A suit which does not ask for
pre-emption of the whole of such interest is
defective, and should not be entertained.""
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13. The Co-ordinate Bench of this Court in the case
of Maheboobsab Buransab Maniyar vs. Mohadinsab
Maheboobsab Maniyar reported in ILR 2012 (1) KAR
1192, paragraphs 23, 24, 25 and 26 has analyzed and
summed up the aforesaid provisions. The said paragraphs
are extracted here under:
"23. As is clear from Section 231 referred to
above under the Mahomedan Law, three classes of
persons and no others are entitled to claim pre-
emption, i.e., co-sharer in the property or the
participator in immunities and appendages such as
right of way or a right to discharge water or owners
of adjoining immovable property. The right of pre-
emption on the aforesaid third ground, i.e., vicinage
does not extend to estates of large magnitude, such
as villages and zamindaris, but is confined to houses,
gardens and small parcels of land. However, the
Apex Court in the case of Bhau Ram Vs. B. Baijnath
Singh, and in Sant Ram and Others Vs. Labh Singh
and Others, reported in 1994(7) SCR 756, has held
that law of pre-emption based on vicinage is void.
24. Therefore, now only two grounds remain.
Therefore, in that context it was necessary for the
plaintiffs to have pleaded specifically what is the
nature of pre-emptive right which they have and
they are enforcing in the suit. That apart,
Section 236 as set out above, prescribes what are
the conditions precedent which are to be satisfied
before the claim for pre-emption would be up held by
the Courts. The conditions are: firstly, the person
claiming pre-emption right has to declare his
intention to assert the right immediately on receiving
the information of the same. That is formally called
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talab-i-mowasibat. Secondly, with the least
practicable delay affirmed intention and making
formal demand either in the presence of buyer or
seller or on the premises which are the subject of
sale, in the presence of atleast two witnesses. The
second formality is called as talab-i-ishhad (demand
for invocation of witness). It is only thereafter he can
resort to third step of filing a suit for enforcement of
pre-emptive right, if the earlier two demands are not
complied with.
25. In GANGAPRASAD vs. AJUDHIA
reported in (1905) 28 ALL 24, the High Court of
Allahabad held that, to constitute a valid talab-i-
ishhad it was necessary that the witnesses should
have been specifically called upon to bear witness to
the demand being made. This was dissented from in
two later Allahabad cases, which held that the
omission of this invocation addressed to the
witnesses was not necessarily fatal. But the Calcutta
High Court approved the GANGAPRASAD'S case and
considers that the witnesses must be asked to
witness the demand by some such words as ''by ye
witnesses to this''. This reason of the judgment is
that the enforcement of the right of pre-emption
must be proceeded by an observance of the
preliminary forms prescribed by Mahomedan Law.
Patna High Court has recently held that invocation of
witnesses to bear testimony to the demand is an
essential element of Talab-i-Ishhad. The Bombay
High Court in a recent judgment was held that it is
sufficient if the pre-emptor informs the witnesses of
his right to pre-empt and the witnesses are taken to
the purchaser for the purpose of attesting the Talab.
It is also that talab-i-ishhad may be combined with
the talab-i-mowasibat. Thus, if at the time of talab-i-
mowasibat the pre-emptor has an opportunity of
invoking witnesses in the presence of the seller or
the buyer or on the premises to attest the talab-i-
mowasibat and witnesses are in fact invoked to
attest it, it will suffice both the talabs (demands).
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26. Therefore it is clear that when a Muslim
wants to enforce the pre-emptive right that is
conferred on him by the custom, the requirement
prescribed under the custom is to be strictly
followed. The essence of this pre-emptive right is
firstly he must express his intention to purchase the
property immediately on receiving the information of
the sale. Then he has to follow such communication
by making a demand to the purchaser or seller in the
presence of two witnesses. It is only if such a
demand is not complied with, a cause of action arises
for him to file a suit within a period of one year from
the date of sale enforce the right of pre-emption.
This is the requirement prescribed in the custom.
Therefore when the customary right is sought to be
enforced in a Court of law, all the prescriptions of the
custom have to be meticulously followed."
14. The facts and circumstances of the present case
needs to be analyzed in the light of aforesaid principles of
law governing exercise of right of preemption by the
plaintiff.
15. Admitted facts of the matter is that subject land
originally belonged to Mastansab who passed away leaving
behind his sons namely Abdul Sukur, the original plaintiff
and his brother Ghudusab, each becoming entitled for
equal share therein.
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16. Revenue records produced at Exs.P.3 to P.6 by
the original plaintiff reflect his name upto the year 2004-
2005. Exs.D.1, D2, D2A, D3, D3A also reflect the name of
plaintiff for the years 1958-59 to 1962-63.
17. Name of defendant No.2 has been mutated in
the revenue records vide M.R.No.53 on 18.05.2006 as per
Ex.D5. The said document refers to a partition purportedly
having taken place on 09.10.2003.
18. According to the plaintiff, during the lifetime of
his brother Ghudusab and even thereafter he has been
exclusively cultivating the subject land by giving half of
the produce and proceeds to Ghudusab as he was residing
with his family at Hyderabad. The factum of Ghudusab
residing with his wife at Hyderabad is not denied. In fact,
according to defendant No.2 even after selling the
southern portion of the property she has gone back to
Hyderabad. Clearly Ghudusab during his lifetime had
relocated at Hyderabad and his family continued to reside
at Hyderabad even after his demise.
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19. The trial Court in its judgment, while answering
issue Nos.1 to 4, at paragraphs 17, 18, 19, 20 and 21 has
extracted the deposition of DW.2, who has categorically
admitted that she was cultivating the land along with the
plaintiff. That even after the sale of land in favour of
defendant No.1, the plaintiff is cultivating the same.
20. The trial Court has also taken note of the fact
that though the defendant No.2 has claimed partition
having been taken place between the original plaintiff and
her husband during their lifetime, she has not given any
details as to the year in which such partition had taken
place.
21. The first appellate Court on re-appreciation of
the matter has confirmed the finding and conclusion
arrived at by the trial Court. It has also taken note of the
fact that if at all there was a partition between original
plaintiff and his brother Ghudusab, the same could have
been entered into the revenue records. But, the defendant
No.2 failed to produce any evidence to prove the division
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of subject land between the original plaintiff and
Ghudusab.
22. No materials placed on record by the
defendants to justify their claim of division of the subject
land between original plaintiff and his brother Ghudusab in
a manner northern portion being allotted to the share of
original plaintiff and southern portion being retained by
Ghudusab.
23. Thus, in the light of trial Court and the first
appellate Court coming to the conclusion of defendants
failing to prove the partition, the original plaintiff and the
defendant No.2 and her children could be the co-sharers
and tenants-in-common in respect of the subject land.
This factual aspect of the matter satisfies the requirement
of Section 231 (1) of the Mulla's Principles of Mahomedan
Law extracted above.
24. As regards demand by the original plaintiff for
preemption by asserting his right to purchase the portion
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of the subject land sold by defendant No.2 in favour of
defendant No.1 in furtherance to the provisions of Section
236 of Mulla's Principles of Mahomedan Law noted above,
the original plaintiff has examined himself as PW.1 and has
reiterated the plaint averments in his examination-in-chief.
He has specifically deposed that on 07.12.2006 between
9:30 and 10:00 am while he was ploughing the subject
land along with his son Firoz with the tractor of one Sri
Revanna Police Patil, defendant No.1 had come to the
spot claiming to have purchased the southern half of the
subject land and had asked plaintiff not to plough the said
southern half portion of the subject land. That, while the
original plaintiff and defendant No.1 discussing several
persons including one Sangappa Malipatil, Shivaraj
Yelagundi, Krishna along with other persons had gathered
at the subject land. In their presence, original plaintiff had
requested defendant No.1 to sell portion of the suit land
purchased by him and that he was ready to pay
Rs.1,46,000/- to repurchase the same. Said request was
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made in the presence of persons who were gathered
there. The said request was not accepted by defendant
No.1. That 3-4 days thereafter original plaintiff had gone
to Hyderabad along with aforesaid persons to enquire
defendant No.2 as to how she could sell the portion of the
subject land without the knowledge of the original plaintiff
and without there being division of the same. That he had
also requested her if she could come over to Hallikhed (B)
village and join defendant No.1 in reselling the portion of
subject land in his favour which was also refused.
25. To the aforesaid oral testimony of the original
plaintiff there is not even a suggestion in the cross-
examination of PW.1 denying the offer made by him in the
presence of the persons named above on 07.12.2006 to
the defendant No.1 to purchase a portion of suit land.
26. Further, the original plaintiff has examined
PW.2 namely Krishna S/o Narayanrao Deshpande who in
his examination-in-chief has deposed about he being
present at the spot when the original plaintiff had
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demanded defendant No.1 to sell the property to him. He
has also deposed about he accompanying the original
plaintiff along with one Sangappa Malipatil to Hyderabad
asking defendant No.2 to sell the portion of property to
the original plaintiff. In the cross-examination the said
witness has stated that on the day when the offer was
made by the original plaintiff to purchase the portion of
subject land there were about 10-12 persons were
present. Nothing has been elicited from the said witness to
discredit the case of the original plaintiff of he offering to
purchase the portion of the subject land.
27. Learned counsel for the defendants however
refers to the answer to a suggestion made by PW.2 at
para-3 of his deposition recorded on 07.08.2009 wherein
the said witness has replied that himself and original
plaintiff had not visited Hyderabad to see defendant No.2.
The said answer may not be of much significance as there
is no specific denial of original plaintiff and said witness
along with others visiting defendant No.2 enquiring about
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she selling the portion of subject land and the original
plaintiff making an offer to purchase the said portion of
the subject land.
28. DW.1 on the other hand, in his cross-
examination has admitted that on 07.12.2006 he had gone
to the suit land at that time original plaintiff and his son
Firoz were present on the suit land. He has however
denied the suggestion of they questioning about his rights
and he responding to them of he having purchased portion
of the subject land for Rs.1,46,000/- from defendant No.2.
He has also denied the suggestion of original plaintiff
making an offer to purchase the subject land in the
presence of Sangappa Malipatil, Shivaraj Yelagundi and
others.
29. The admission of the defendant No.1 in his
deposition regarding he visiting the suit land on
07.12.2006 where the original plaintiff and his son Firoz
being present on the said spot tallies and stands
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corroborated with the version of the original plaintiff - PW-
1 and PW-2.
30. Defendant No.2 has denied the suggestion of
original plaintiff visiting her along with two witnesses at
Hyderabad.
31. The aforesaid deposition of the parties establish
the fact that soon after original plaintiff learning about
defendant No.1 purchasing the southern portion of the
subject land from defendant No.1, had demanded exercise
of his right of preemption. As seen in the operative
portion of the order of the Trial Court in furtherance of his
intention, original plaintiff had even deposited
Rs.1,46,000/- being the sale consideration paid by
defendant No.1 to defendant No.2 for purchase of
southern portion of the subject land in exercise of his right
of preemption. In the light of this available material on
record, contention of original plaintiff not examining
specific witnesses before whom he made the offer as
named in the plaint shall not be an impediment. This is
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particularly in view of the fact that PW-2 in his affidavit
evidence at paragraph-9 has spoken about the presence
of Sangappa Malipatil and Shivaraj Yelagundi on
07.12.2006 at the spot when the original plaintiff had
declared his intention and had offered to purchase the
subject land. In the cross-examination not even a
suggestion put to PW-2 denying the presence of said
witnesses at the spot.
32. The contention of the counsel for the
defendants/appellants that the demand made by the
original plaintiff to purchase the subject land was only
against defendant No.2 who had only 1/8th share in the
property without sons of Ghudusab being made as party in
the suit, the exercise of right of preemption would be in
complete cannot be countenanced in the facts situation of
the matter. The demand by the original plaintiff was to the
entire extent of land sold by defendant No.2 in favour of
defendant No.1 and not to the portion are part of the
same.
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33. From the aforesaid material evidence available
on record the following facts emerged :
i) That the original plaintiff and Ghudusab were the co-
owners/co-sharers of the subject land each being
entitled for half equal share after demise of their
father Mastansab.
ii) That there has been no partition of the subject land
between the original plaintiff and Ghudusab during his
life time or even thereafter between original plaintiff
and defendant No.2.
iii) That the original plaintiff continued to be in possession
and cultivation of the entire subject land as co-sharer/
and tenant-in-common even after the demise of
Ghudusab.
iv) That original plaintiff along with his son Firoz were
present and ploughing their land on 07.12.2006 when
the defendant No.1 visited the subject land.
v) That original plaintiff had indeed made a demand of
his rights of preemption by offering to purchase
southern portion of subject land sold by defendant
No.1 in favour of defendant No.2 in the presence of
the witnesses named in the plaint and in the evidence.
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vi) In furtherance to his intention to purchase the
property, original plaintiff had even deposited
Rs.1,46,000/- before the trial Court.
vii) The requirement of provision of Section 231 and 236
of the Mulla's Principles of Mahomedan Law stands
complied.
34. Substantial questions of law are answered
accordingly. Accordingly, the following:
ORDER
i) Appeal is dismissed.
ii) Judgment and decree dated 14.08.2013 passed
in O.S.No.54/2011 on the file of the Senior
Civil Judge, Humnabad and the judgment and
decree dated 16.10.2015 passed in
R.A.No.86/2013 on the file of II Additional
District and Sessions Court, Bidar, sitting at
Basavakalyan are confirmed.
Sd/-
(M.G.S.KAMAL)
JUDGE
SN/List No.: 1 Sl No.: 19
CT:PK
