Smt. Zahida Yusuf vs Majid Khan
2024 Latest Caselaw 12942 MP

Madhya Pradesh High Court

Smt. Zahida Yusuf vs Majid Khan on 8 May, 2024

Author: Anuradha Shukla

Bench: Anuradha Shukla

                             1
 IN    THE     HIGH COURT OF MADHYA PRADESH
                    AT JABALPUR
                         BEFORE
          HON'BLE SMT. JUSTICE ANURADHA SHUKLA
                    ON THE 8 th OF MAY, 2024
                 CIVIL REVISION No. 1016 of 2023

BETWEEN:-
1.    SMT. ZAHIDA YUSUF W/O LATE SHRI MOHD.
      YUSUF KHAN, AGED ABOUT 50 YEARS, R/O
      MADAN MOHAN, MALVIYA WARD, TEHSIL AND
      DISTRICT JABALPUR (MADHYA PRADESH)

2.    MOHD. TAIMOOR, S/O LATE YUSUF KHAN, AGED
      ABOUT 25 YEARS, R/O MADAN MOHAN, MALVIYA
      WARD TEHSIL AND DISTRICT JABALPUR
      (MADHYA PRADESH)

3.    SMT BUSHRA, W/O INAMURREHMAN, AGED
      ABOUT 27 YEARS, R/O MADAN MOHAN, MALVIYA
      WARD, TEHSIL AND DISTRICT JABALPUR
      (MADHYA PRADESH)

4.    NIMRA YUSUF, D/O LATE YUSUF KHAN, AGED
      ABOUT 12 YEARS, THROUGH ITS NATURAL
      GUARDIAN SMT ZAHIDA YUSUF, W/O LATE MOHD
      YUSUF KHAN R/O MADAN MOHAN, MALVIYA
      WARD TEHSIL AND DISTRICT JABALPUR
      (MADHYA PRADESH)

5.    SANAURREHMAN, S/O LATE SHRI ABDUL
      REHMAN,   AGED  ABOUT   71   YEARS, R/O
      MARHATAL JABALPUR (MADHYA PRADESH)

                                                   .....APPLICANTS
(BY SHRI A.S. HUSSAIN - ADVOCATE)

AND
1.    MAJID KHAN, S/O SHRI HIFZURREHMAN, AGED
      ABOUT 37 YEARS, R/O VILLAGE KANHIWADA,
      THANA KANHIWADA, TEHSIL AND DISTRICT
      SEONI (MADHYA PRADESH)

2.    STATE OF M.P. THROUGH ITS COLLECTOR
      DISTRICT SEONI (MADHYA PRADESH)
                                     2
                                                               .....RESPONDENTS
(NONE FOR RESPONDENT NO.1
MS. SARASWATI BADGAINYA - PENAL LAWYER FOR RESPONDENT
NO.2/STATE)

      Reserved on :       26.04.2024
       Pronounced on : 08.05.2024

      This revision having been heard and reserved for orders, coming on for
pronouncement this day, the court passed the following:
                                    ORDER

This civil revision has been preferred against the impugned order passed by Fourth Civil Judge (Junior Division), Seoni, on 4.9.2023 in Civil Suit No.RCSA 113/2022 whereby the application filed under Order 7 Rule 11 CPC

on behalf of applicants (hereinafter referred to as "defendants") seeking dismissal of the aforesaid civil suit filed by respondent no.1 (hereinafter referred to as "plaintiff") was dismissed.

2. The facts of the case are that a civil suit was filed by plaintiff for declaration of his right of preemption over the suit property and to restrain the defendants from alienating this property to any person outside the family. For these reliefs, it was pleaded in the plaint that the plaintiff was the son of Hifaz- ur-Rehman and Hifaz-ur-Rehman was the real brother of Sana-ur-Rehman (defendant no.2). According to plaintiff, the property in question belonged to his grandfather Abdul Rehman but defendant no.2, acting mischievously and fraudulently, got a Will of the property in his name through his father; a dispute arose in the family as all the descendants of Abdul Rehman had the joint share in the property; to settle this dispute, a compromise was arrived between the parties under which it was agreed that the property shall be purchased by defendant no.2 in his name and the sale consideration shall be divided among all

the co-sharers; it was also agreed at that time that if the property was later sold then every co-sharer shall have a right of being offered the property for purchase. It has been pleaded in the plaint itself that though the property was agreed to be sold to defendant no.2 under the aforesaid conditions but the sale- deed was fraudulently executed in favour of defendant no.1, who is the brother- in-law of defendant no.2. According to plaint, the property is again proposed to be sold and when plaintiff came to know about this proposal, he conveyed orally as well as through notice to defendants no.1 and 2 his right of preemption and also willingness to purchase the property but they did not give any positive answer, hence the suit was filed.

3. The defendants no.1 and 2 jointly filed an application under Order 7 Rule 11 CPC claiming that the property was already sold to defendant no.1 who was not a member of the family, hence the right of preemption was not available under any proposed second sale. The first sale executed in favour of defendant no.1 was with the consent of plaintiff and other co-sharers. The property was not correctly valued nor sufficient court-fees was paid and the suit was also highly time-barred, hence it was requested that the plaint should be rejected.

4. This application was opposed by the plaintiff. Under the impugned order, the trial court dismissed the application holding that the suit was duly maintainable.

5. The grounds raised in this civil revision are that the learned court below passed the impugned order without perusing and understanding the pleadings and, therefore, committed error in dismissing the application; it was an admitted fact that the plaintiff had given consent for the sale but this important fact was ignored; the right of preemption under the Mohammedan Law is applicable only on first transaction of family property and not upon subsequent transfers; the

learned court below also failed to consider the important fact that the suit was filed after the expiry of period of limitation. It was, therefore, prayed in the civil revision that the impugned order be set aside and the order of dismissal of suit be passed.

6. The plaintiff, though served and represented in the case, did not appear on the date fixed for final hearing.

7. Arguments of counsel for the defendants have been heard and the record is perused.

8. The pleadings made in the plaint reveal that the plaintiff had admitted the fact that the property was already sold to defendant no.1 through a registered sale-deed but it is claimed that this transaction was fraudulent as the property was supposed to be purchased by defendant no.2 and for this, the consent of plaintiff was obtained but at the time of execution of sale-deed defendant no.1, who is a close relative of defendant no.2, replaced the defendant no.2 in the sale-deed as the purchaser. These pleadings weighed heavily when the trial court dismissed the application of Order 7 Rule 11 CPC. It has been observed in the order that there was a pleading of fraud played in execution of the sale-deed. It was also observed by the learned court below that whether the consent of plaintiff in the sale was influenced by any misrepresentation or was it a free consent, is a matter to be examined after evidence and similarly whether the suit was time-barred or not is also a mixed question of facts and law, therefore based on these findings the learned trial court refused to allow the application of Order 7 Rule 11 CPC.

9. From the conjoint reading of the pleadings made in the plaint and the observations made in the impugned order, it is established that the learned trial

court failed to appreciate the nature of the dispute. Nowhere in the plaint, the execution of sale-deed of defendant no.1 was challenged. Neither the suit was valued for this relief nor any court-fees was paid for it. Even the prayer clause was simply restricted to the relief of declaration of right of preemption and permanent injunction. Seeking the cancellation of sale-deed executed in favour of defendant no.1 was not at all pleaded nor requested in the plaint. Para 4 of the plaint merely refers to the circumstances under which sale-deed in favour of defendant no.1 was executed but there also plaintiff failed to make any claim that the sale-deed for those stated reasons was liable to be set aside.

10. The pleadings made in plaint reveal that plaintiff wanted the declaration of his right of preemption in the suit property as, according to him, the suit property was again in the process of being sold. Whether any such right in law was available to the plaintiff was the question before the learned trial court but it failed to examine this legal aspect and dismissed the application of Order 7 Rule 11 CPC on fringe grounds.

11. The right of preemption, which was invoked by plaintiff in the suit, has to be considered in the light of judicial pronouncements. Among Muslims, this right owes its origination to customs while Section 22 of the Hindu Succession Act embodies this right having applicability over Hindus. The constitutional validity of law of preemption was discussed in the Constitution Bench judgment of Bhauram v. Baijnath Singh AIR 1962 SC 1476 . In that judgment, a four- Judge-Bench decision given in Bishan Singh v. Khajan Singh AIR 1958 SC 838 was also relied upon and it was held that the right of preemption involves two aspects; first, the inherent or primary right i.e. right for the offer of a thing about to be sold; and second, the substitution or remedial right to follow the thing sold. Thus, the right of preemption is available even before and after the

sale. In the present case, the plaintiff prayed for declaration of his right of preemption as against the prospective sale of the property, which was originally sold to the defendant no.1.

12. The learned counsel for defendants has very aptly relied upon the decision of Raghunath (D) by L.Rs. v. Radha Mohan (D) Thr. L.Rs. AIR 2020 SC 5026. In this judgment, the Apex Court considered the applicability of this right of preemption. In this case, the property was successively sold and although the provisions of Rajasthan Preemption Act, 1966 were applicable in the case but court considered the dispute in general aspects as well. Citing various case laws here, the Apex Court held that the right of preemption is capable of being invoked only at the first instance and does not continue to permeate for an indefinite period of time for each sale transaction. It was held that it is neither appropriate nor permissible to adopt any legal reasoning which would make a weak right, such as of preemption, as a right of something in perpetuity, arising to a plaintiff every time there is a prospective transaction of sale.

13. In that case the property was sold thrice in the years 1945, 1946 and 1966 but the sale transaction, which was challenged under the right of preemption, was of the year 1974. The Hon'ble Apex Court held that the right of preemption was available only once and it was the choice of the holder of that right whether to take it or to leave it; if such person found that it was not worth once, it was not an open right available for all times to come to that person. It was also observed that the right of substitution of vendee can be exercised only once and not recurringly. The finding given therein was that the right of preemption was exercisable for the first time when the cause of such a right arose and if the holder of the right did not challenge the sale effected on earlier occasion, the

civil suit challenging the second transaction was barred.

14. In the present suit also, the plaintiff was the signatory of the sale-deed executed in favour of defendant no.1 and although he has claimed that there was some fraud played in the execution of that sale-deed but he has not at all challenged that sale-deed which was executed in the year 2014. Admittedly, the civil suit was filed before the trial court in the year 2022 challenging the prospective sale of the suit property. Evidently, the plaintiff had no right to challenge the prospective sale as his right of preemption was already waived when the disputed property was sold to defendant no.1, a person outside the family of plaintiff, and that too with the consent of plaintiff. That sale-deed was never challenged by the plaintiff before any court of law on the ground of absence of his free consent. Now the defendant no.1 is the absolute owner of the suit property which is free from the right of preemption, hence the civil suit, purely based on the pleading of right of preemption, was not maintainable before the civil court. No cause of action arose to the plaintiff to challenge the prospective sale by defendant no.1 of the disputed property. Thus, the learned trial court committed error in analyzing the relevant facts and applying the relevant law and consequently dismissing the application of Order 7 Rule 11 CPC.

15. This civil revision is accordingly allowed and the civil suit registered as RCSA 113-A/2022 before the Fourth Civil Judge (Junior Division), Seoni, is hereby dismissed for want of any cause of action arising in favour of plaintiff.

16. Let a copy of this order along with its record be sent to the trial court for information and necessary compliance.

(ANURADHA SHUKLA) JUDGE ps

Date: 2024.05.09 10:44:50 +05'30'