FAZLE RAB versus MOHD. YAKEEN

PHUKAN, .J. This appeal arising out of judgment of the High Court of Judicature at Allahabad is by the plaintiff. The arrayed in the suit. The facts are as follows:

pp. 834–835, margin H

The suit property originally belonged to one is situated in the village Sakrawal. A part of the the municipal limit of the to.wn of Tanda. Sakhawat property to his wife in lieu of dower debt and 1951 to one Mohd. Makin, predecessor of the a stranger to the village. The plaintiff-appellant present suit claiming right of pre-emption. The grounds inter alia that only the house was sold plaintiff could have exercised his right of pre-emption emption ceased to be available once the suit property municipality of Tanda. The trial court decreed transfer in question was not confined to the to the house-site. Relying on four judgments of the subordinate judge for the years 1915, 1924 that such a right of pre-emption existed even included within the municipal limit of Tanda. a dispute was raised as to whether the suit property town ofTanda. The court on the basis of the report a finding that on the date of transfer of the suit on which the suit property was situated ceased and it became a part of urban agglomeration municipal limits of the said town and this finding appellate court dismissed the appeal. The High appeal tiled by the defendants by the impugned that the custom relating to pre-emption was not and that the plaintiff could not prove the right in respect of suit property.

p. 835, margin A

Admittedly, Oudh Lands Act 1876 is applicable Chapter II deals with right of pre-emption. We of Section 7 and Section 8 of the said Act, which purpose:

p. 835, margin F

7. Presumption as to its existence. custom or contract to the contrary is proved, recorded in the settlement-record or not, (a) ......... (b) to extend to the village-site, to the houses built upon lands and shares of lands within the village-boundary,

pp. 835–836, margin F

transferable rights affecting such lands. 8. Its existence in towns to be proved The right of pre-emption not be presumed to exist in any town or city, or any sub-division thereof, but may be shown to exist therein and to be therein by such persons and under such circumstances custom prescribes."

p. 836, margin A

Section 7(a) speaks of a village-site and house built upon it and to the said section existence of customary right of pre-emption can whether recorded in a settlement record or not. But under Section pre-emption shall not be presumed to exist in any city or town and claiming such right of pre-emption in such area has to show existence of such customs and such circumstances as the local prescribes.

p. 836, margin B

The customary right of pre-emption has not been looked upon as it operates as a clog on the right of the owner to alienate the in view of Sections 7 and 8 of Oudh Laws Act, 1876, legislative has been giv~n to customary right of pre-emption in the area where is situated, the only difference is that in respect of customary right emption over a village site and house built upon it, presumption will in case of its existence in towns it has to be approved

p. 836, margin D

Now the question is whether the plaintiff has been able to discharge burden of proof to t!-e customary right of pre-emption over the Before the trial court judgments for the years 1915 and 1924-26 proved. The courts in these judgments have recognised such a right of pre-emption of a co-sharer in respect of town land. It is that judicial decisions recognizing custom are relevant and notwithstanding that they are not 'inter parties'; and such evidence most satisfactory evidence. Learned senior counsel for the defendant contended that the plaintiff did not produce any evidence to show custom was continuing on the date the sale deed was executed Having proved that the above custom was continuing in respect of also and recogniz.ed by courts, it was the burden of the defendant that this custom was either abandoned or discontinued.

p. 836, margin E

The High Court relying on the decision of Abdul Alim and Ors. Mohammad and Ors., AIR 33 (1946) Oudh 188 held that the customary right of pre-emption ceased to exist in the town. Mr. P.S. Mishra, learned senior counsel for the plaintiff has submitted that the High Court misapplied this decision to the facts of the case. On the other hand Mr. Dinesh Dwivedi, learned senior couns~l for the defendants has strenuously urged that tile above decision squarely applied to the facts of the present case and the plaintiff could not prove that the custom was continuing one.

pp. 836–837, margin H

That was a decision in respect of the customs of escheat. The High Court observed it as follows:

p. 837, margin B

"It could still offer a very strong reason for non-application of custom of pre-emption as well to townships on account of complete transformation in the social system prevalent in cities as compared to the one prevalent in villages which must equally hold good for the custom of pre-emption."

p. 837, margin C

In our opinion, the High Court erred in applying the above ratio to the case in hand only on the ground that there was a complete transformation in the social system prevailing in the cities. In view of the fact that courts recognized such customary right of pre-emption in respect of town land, the above reasoning of the High Court is not acceptable to us. The High Court has also recorded that there was no evidence that the custom was a continuing one. This finding is also erroneous inasmuch as the High Court overlooked the fact that this custom was not only prevalent in the town for a long period but there was no evidence from the side of the defendant that this custom was discontinued at any point of time. We, therefore, find considerable force in the submission of Mr. Mishra .

p. 837, margin D

Mr. Dwivedi has further contended that plaintiff was not a co-sharer of the Mohal and the suit was liable to be dismissed on this ground. The contention of the learned senior counsel has to be rejected as on the facts, courts below have found that the plaintiff was a co-sharer. Relying on some provisions of the U.P. Urban Areas Zamindari Abolition and Land Reforms Act, 1957, Mr. Dwivedi has also contended that after enactment of the above Act the concept of pre-emption ceased to exist. This point is never urged either before the High Court or before the subordinate courts and, therefore, we need not examine this point. Moreover, we have perused sections of the Act to which our attention has been drawn by the learned senior counsel and we are unable to accept that after coming into force of the above Act, the customary right of pre-emption ceased to exist in the area in question. A Accordingly, we hold that the plaintiff being a co-sharer has acquired right of pre-emption over the suit property and, therefore, is entitled for a decree. We, therefore, set aside the impugned judgment of the High Court and restore the judgments of the two courts below. Cost on the parties. B.S. Appeal allowed.

pp. 837–838, margin F