V. Nath, J.@mdashThis appeal has been filed against the judgment and decree dated 9th September, 1982 passed by the Second Additional Sub-Judge, Bhagalpur in T.S. Nos. 28/78/34/82 whereby the plaintiff has been granted the decree of pre-emption to repurchase the house described in Schedule-I of the plaint from the defendant first party after payment of the consideration amount of Rs. 10,000/- of the earlier sale deed dated 11.11.1996. The relevant facts, as uncontained in this appeal, are that Babu Sakhichand was the owner of a residential house in Sakhichand Ghat Road in Mohalla-Nayabazar, Bhagalpur as well as other properties. The predecessors of the plaintiff, the defendant 1st set and the defendant 2nd set were the sister''s sons of Babu Sakhichand and had inherited his properties after his death. Later on, there had been partition by metes and bounds among them with regard to those properties through a registered deed of partition dated 16.7.1954. In that partition, Babu Brijchand, the father of the plaintiff, was allotted the northern portion of the residential house described in Schedule-I of the deed and his brother Krishan Chand, the predecessor of the defendant 2nd set was allotted the southern portion of the residential house described in Schedule-II of the deed. The another brother, Radha Krishna Chand, the predecessor of the defendant 1st set was not given a share in the residential house but was allotted other properties as mentioned in Schedule-III of the deed. However, some land lying in between the northern portion and southern portion of the residential house and drain in the west was left in common and it was agreed between the father of the plaintiff and the predecessor of the defendant 2nd set, who were allottees of the northern portion and southern portion of the residential house, that the said land would be used by them for opening doors, windows, flow of rain water, common passage as well as for construction of drain.
2. By the sale deed dated 11.11.1976 (registered on 10.3.77), the defendant 2nd set sold the southern portion of the residential house to the defendant 1st set, which is the suit properties fully described in Schedule-I of the plaint. The case of the plaintiff is that he is a participator in immunities and appendages to the suit house being co-sharer in the common land and drain and therefore has a preferential right to repurchase the suit house on that basis and also on the basis of being a co-sharer. It is also the case of the plaintiff that after getting the knowledge of the sale deed on 2.2.1978, he, on the same day, performed talab-i-mowasibat asserting his preferential right of purchase and soon thereafter, he made enquiries and went to the suit house and made the demand (talab-i-ishhad) asserting his right of pre-emption, in presence of witnesses. The suit has, thus, been filed by the plaintiff for enforcing his right of pre-emption.
3. The defendant no. 1 (now deceased through L.R.) filed his written statement controverting the assertions of the plaintiff. The defendant no. 2 also filed his separate written statement. From the statements made in the written statements of both the defendants, it transpires that the plaintiff, the defendant no. 1 as well as defendant no. 2 are all grandsons of late Harakh Chand. The partition of the year 1954 by a registered deed between three sons of late Harakh Chand has been accepted but on that basis, it has been also asserted that the plaintiff is not a co-sharer of the defendants. It has further been accepted that in the said partition, the northern part of the residential house was allotted to the share of the plaintiff''s father and southern part of the said house was allotted to the father of the defendant no. 2. It has also been accepted that a common passage and a drain were left for the use of the plaintiff and defendant no. 2. But any right of the plaintiff either by way of easement or otherwise over the suit house, sold to the defendant no. 1 by the defendant no. 2, has been specifically denied. The defendants have also denied the fact that the plaintiff was a participator in any of the immunities and appendages over the sold house and the existence of a right of pre-emption by custom, in the locality, have also been denied. It has been further stated that the defendant no. 1 has purchased the suit house for his exclusive occupation and he is not a stranger or a third party to the family of the plaintiff and defendant no. 2, but in fact he is their cousin (brother).
4. In view of the rival pleadings of the parties, the learned court below framed altogether seven issues out of which issue nos. 5 and 6 were the material issues which are as follows:--
Issue No. 5:--Is the plaintiff entitled to claim a right of pre-emption in respect of the house described in schedule-1 of the plaint on the ground of being a co-sharer as well as a participator in the immunities and appendages in respect of the holding in question and if so whether the plaintiff has made demands claiming his such right from late Basant Kumar Chand on 2.2.1978, 3.2.1978 and 4.2.1978 according to law?
Issue No. 6:--Has the plaintiff got a preferential right to repurchase the house in question from the defendant first party and to obtain his Khas possession over the same as claimed by him?
5. After scrutinising the pleadings and evidence of the parties, the learned court below has held that the right of pre-emption has been recognized by custom among Hindus in the State of Bihar. It has been further held that the plaintiff has made the necessary demands from the defendant no. 1 asserting his right of pre-emption and as such he is entitled to the right of repurchase the house described in Schedule-I of the plaint by virtue of being a co-sharer as well as the participator in the immunities and the appendages in respect of the holding in question. On the basis of these basic findings, the suit has been decreed by the impugned judgment and decree.
6. Heard Mr. Ray Shivaji Nath, the learned Senior Counsel for the appellants and Mr. B.P. Pandey, the learned Senior Counsel for the respondents.
7. Questioning the pregnability of the impugned judgment, Mr. Ray Shivaji Nath has firstly submitted that the learned court below has wrongly presumed the existence of a customary law of pre-emption in the State of Bihar with regard to the urban land and house. It has been pointed out that the defendants have specifically denied the prevalence of any custom or usage of pre-emption in the locality, and even the plaintiff has also not pleaded the existence of such a customary right. It has beer submitted that no evidence has been led by the plaintiff to establish the customary law of pre-emption prevalent in the locality and the finding of the learned court below that such a customary law exists is simply presumptuous. Tracing the history of the customary law of preemption, the learned counsel has canvassed that initially such custom was prevalent among Mohamdans but the same arose out of the necessities of that time when the different communities preferred to live in separate villages or localities, and intrusions by strangers was to be avoided. It has been argued that in the present case as the vendor, the purchaser as well the pre-emptor admittedly belong to one family, then even in face of the existence of a customary law of preemption, the same cannot be applicable among the members of the same family. It has further been contended that even otherwise also the plaintiff has completely failed to establish that he was a participator in the immunities and appendages over the suit house and right to use a distinct land as common passage or having a drain, in common with the defendant, will not give him status of shafi-i-khalit of the house in question. Bolstering his submission, the learned Senior Counsel has canvassed that If such right is accepted to be prevalent in the State of Bihar, it would have disastrous impact on the multi-storied buildings consisting of several apartments owned by different individuals but having common staircase, common parking and even common entrance and would seriously impede the right of transfer of property. It has also been submitted that the plaintiff has failed to establish by evidence that he performed the necessary demands for becoming entitled to the right of pre-emption and as such no relief of pre-emption should have been granted.
8. Per contra, Mr. B.P. Pandey, the learned Senior Counsel appearing for the plaintiff-respondent has submitted that the customary law of pre-emption with regard to urban land and house prevails in the State of Bihar and has been so recognized in judicial decisions, and as such it was not at all necessary for the plaintiff to plead and lead evidence to establish the prevalence of such a custom. It has been next submitted by the learned Senior Counsel that there is no dispute that the plaintiff, defendant no. 1 and defendant no. 2 are descendents of common ancestor but by registered deed of partition in the year 1954, the joint properties were partitioned and in the said partition, the plaintiff''s father was allotted the northern portion of the house and the father of defendant no. 2 was allotted the southern portion of the house and the father of the defendant no. 1 was allotted properties elsewhere. Pointing out to the statement made in the partition deed of 1954, it has been submitted that some land has been left in common for use both by the plaintiff as well as the defendant no. 2 as passage with right to open doors, windows as well as to flow water, and the drain line in the west of the holding has also been left to be jointly used. On this basis, it has been canvassed by the learned counsel that the plaintiff is a participator in immunities and appendages of the suit house and therefore, entitled to claim pre-emption. It has further been contended that the plaintiff has performed all the formalities of making the demand and the same has rightly been found to be valid by the learned court below. The learned counsel therefore has submitted that the impugned judgment of the learned court below does not require interference and this appeal has no merit.
9. Several decisions have also been relied upon by both the sides in support of their submissions, and the same shall be discussed appropriately later on.
10. In view of the rival contentions of the parties, the following points arise for consideration in this appeal:--
(i) Whether the customary law of pre-emption is prevalent in the State of Bihar with regard to urban land and houses, and in case it is so prevalent, what is its nature and scope?
(ii) Whether the plaintiff is entitled, in the facts and circumstances of the case, to a preferential right of repurchase of the suit property from the defendant no. 1?
(iii) Whether the impugned judgment passed by the learned court below is sustainable in law and facts?
11. For convenience, all the points are being considered together. The right of pre-emption is "a right to acquire by compulsory purchase, in certain cases, immovable property in preference to all other persons". In Hindu Law, no right of pre-emption exists in any of its schools. It was essentially a Mahomedan doctrine but due to its suitability, it was widely accepted by other communities as well. Its origin, apparently was in the urge of a community to avoid intrusions by strangers in a closely knit village or community of persons of one religion or caste. With the passage of time this customary law came to be applied even in cases of the properties of a family. But the predominant purpose for accepting this customary law of pre-emption has always been to maintain distinctiveness and privacy by-excluding the strangers from acquiring any right in the family properties affecting the privacy. In this regard, it would be apt to take notice of the observations by their Lordships of the Privy Council in the case of
...The pre-emption in village communities in British India had its origin in the Mahomedan Law as to preemption, and was apparently unknown in India before the time of the Moghul Rulers.....A custom of pre-emption was doubtless in all cases the result of agreement amongst the shareholders of the particular village, and may have been adopted in modern times, and in villages which were first constituted in modern times. Right of pre-emption have in some provinces been given by Acts of the Indian legislature......But in all cases the object is, as far as possible, to prevent strangers to a village from becoming sharers in the village....
12. The same view has been expressed by the Hon''ble Supreme Court in the case of
... It may be stated that the right of pre-emption was not recognized under the Hindu Law and is not enforced in large parts of this country to the south of the Vindhyas. it came to be enforced after the advent of Mahomedan rule as based on custom which was accepted by courts, particularly in northern India...In a society where certain classes were privileged and preferred to live in groups and there were discriminations, on grounds of religion, race and caste, there may have been some utility in allowing persons to prevent a stranger from acquiring property in an area which had been populated by a particular fraternity or class of people and in those times a right of pre-emption which would oust a stranger from the neighbourhood may have been tolerable or reasonable....
13. In view of the aforesaid observations by the Privy Council as well as the Apex Court, it is clearly discernible that the very basis of the evolution of customary law of pre-emption was the desire to exclude a stranger from becoming a co-sharer or a near neighbour. In fact, even in the legislations by many States giving the right of pre-emption a statutory status with regard to urban immovable property or agricultural land, the emphasis on exclusion of a stranger is plain and patent. Much has been argued by the learned Senior Counsel for both the sides on the question of the prevalence of such customary law of pre-emption in the State of Bihar. But in view of the authoritative pronouncement in this regard by the Hon''ble Supreme Court and also by a Full Bench of this Court, this issue requires no more consideration, in the case of
In course of time, the Hindus came to adopt pre-emption as a custom for reasons of convenience and the custom is largely to be found in provinces like Bihar and Gujarat which had once been integral parts of the Muhammadan empire....
Their Lordships have further held:--
...If the right of pre-emption is set up by non-Muslims on the basis of a custom, the existence of the custom is a matter to be established by proper evidence. But as has been laid down by the judicial committee", vide-39 Ind. App. 101 (PC) A, following the decision of the Calcutta High Court in--"Fakir Rawat vs. Emambaksh", 1883 Beng L.R. Sup. Vol.-35(J), that when the existence of a custom under which the Hindus claim to have the same rights of pre-emption as Muhammadans, in any district, is generally known and judicially recognized, it is not necessary to prove it by further evidence. A long course of decisions has established the existence of such custom in Bihar, Sylhet and certain parts of Gujarat....
14. Similar views regarding prevalence of customary right of pre-emption among Hindus in Bihar have been expressed by a Division Bench of this Court in the case of
...there is no dispute that the right of pre-emption is recognized by custom amongst the Hindus, who are either natives of or domiciled in Bihar, and it is governed by the rules of the Mahommedan Law of pre-emption, except in so far as such rules are modified by such custom....
(Emphasis supplied)
15. It is worth noting that in the States where the law of pre-emption with regard to urban land and houses as well as agricultural land has been given statutory status by enactments, the right of pre-emption, is, accordingly, to be exercised in accordance with the provisions of the said enactments. In the State of Bihar, the legislature has recognized such a right in Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 but the words "land" and "homestead" as used in this Act have been explained times without number by this court categorically holding that the statutory right of pre-emption is available only to agricultural land and to such "homestead" which is connected with agriculture, and that the said right of preemption is not available, if the "homestead" is not connected with agriculture. It has also been held that such right of preemption has been conferred by way of agrarian reforms and is primarily meant for the consolidation of agricultural holdings for better cultivation. There is no enactment by the legislature in the State of Bihar governing the rights of pre-emption with regard to urban immovable property. Therefore, in the present case while deciding the right of pre-emption over urban land and houses, the rules of Mahomedan Law of pre-emption have to be looked into and applied in accordance with "justice, equity and good conscience".
16. In Mulla''s Principles of Mahomedan Law, 19th edition, three classes of persons have been mentioned as entitled to claim pre-emption, namely;
1. A co-sharer in the property (Shafi-i-Sharik).
2. A participator in immunities and appendages such as a right of way or a right to discharge water (Shafi-i-Khalit).
3. Owners of adjoining immovable property (Shafi-i-Jar).
The first excludes the second, and the second excludes the third. However, in view of the decision by the Constitution Bench of the Apex Court in Bhau Ram''s Com (supra) where the third category of right of preemption by vicinage has been held to be unconstitutional as violative of Article 19(1)(f), no further discussion is required in that regard. In this case, the plaintiff has sought to base his claim of pre-emption on the basis of being a co-sharer (shafi-i-sharik) and a participator in the immunities and appendages (shafi-i-khalit).
17. The plaintiff has not denied that he also belongs to the same family to which the defendant no. 1 (purchaser) and defendant no. 2 (vendor) belonged. It is also the plaintiff''s case that the family is no more joint and partition of the family properties including the residential house had been done by a registered deed of partition dated 16.7.1954 (Ext.-1). However, it is the case of the plaintiff that in the said partition, the father of the plaintiff was allotted the northern portion of the residential house and the father of the defendant no. 2 was allotted the southern portion of the said residential house and the father of the defendant no. 1 was not given any share in the residential house as he was given properties elsewhere. The plaintiff has however, asserted that some land lying between the northern house and southern house has been left in common for use as passage, opening of doors and windows and for flow of water through drain to be constructed therein, and further the drain in the west of the said holding was also left to be commonly used. On this basis, the plaintiff has claimed himself to have a right of preemption as a co-sharer and as a participator in the immunities and appendages, when the southern house has been sold to the defendant no. 1 by the defendant no. 2 by registered sale deed (Ext.-4) executed on 11.11.1976 and registered on 10.3.1977. Here, it would be apposite to look into the relevant statement in this regard made in the registered deed of partition (Ext.-1) which is as follows:--''
...That it is further agreed between the First and the Second party that some land which has been kept as common and shown in the attached map in colour blue will be used by the parties and they shall be entitled to open doors, windows with sun-shed at the height of not less than seven feet, flow of water from Angan or roof by means of down rain water pipe but none of them shall be entitled to enclose or close the common land. Both parties can construct drain in the said common passage for the flow of water from the Angan, the existing structures or roofs and projections at present existing at the site shall be removed by the parties and the materials out of it shall be distributed according to share. The parties shall also have a right to flow water through the drain which is left common lying to the west and drain to the east of the holding. The drain to the east of the holding, a gate in the common passage and pucca flooring in the said common passage shall be constructed by the first and second parties and the cost of the same shall be contributed equally by the First and Second parties....
18. From the recitals in the registered partition deed (Ext.-1), it is manifest that there had been complete partition between the family of the plaintiff, the defendant 1st set and the defendant 2nd set and the parties came in separate exclusive possession of the properties allotted to their shares as mentioned in different schedules of the deed and had also been given the right to get their names mutated in the municipality as well as in the office of the Zamindar for their allotted properties. The plaintiff has, in definite terms, been given no right in the suit property i.e. the house in the southern block allotted to the defendant 2nd set. Their earlier joint title over the residential house has thus been transformed into individual title over the part allotted to each of them exclusively. As such, his claim to be a co-sharer in the suit house clearly has no substance. The learned Senior Counsel for the plaintiff-respondent has also not laid much stress on it but has strongly emphasized the right of pre-emption of the plaintiff as shafi-i-khalit.
19. From the boundaries of the portions allotted to the plaintiff and defendant no. 2 as well as from the map attached therewith, it is manifest that the houses allotted to them have distinct and separate identity. However, the land in the middle of the two houses and the drain in the west have been left for common use. The seminal issue, thus, arises whether the right to use the said land and drain in common with the defendant no. 2 will entitle the plaintiff to base his right of preemption as participator in immunities and appendages i.e. shafi-i-khalit over the suit house.
20. It would be pertinent to examine the principles governing the Mahomedan Law of pre-emption as shafi-i-khalit. The noted scholar Amir Ali, in his treatise "Mahommedan Law", Volume-1 (3rd edition), has described the right of pre-emption as follows:--
It appertains
(1) To the co-sharer in the property called a shafi-i-sarik, pre-emptor by right of co-parcenary;
(2) To a sharer in the rights and appurtenances called a shafi-i-khalit, preemptor by virtue of a right of easement over the property sold;
(3) To a neighbour, called a shafi-i-jar, pre-emptor by right of vicinage;
21. It would also be apt to notice the definition of shafi-i-khalit given in Wilson''s Anglo Mahomedan Law (6th edition) at page 393, as follows:--
...Owners of property connected with the property in question through some right in the nature of an easement, whether such easements be attached to both properties as dominant tenements as against a third property, or to one of them as dominant against the other as servient tenement. Such persons are called "participators in the appendages".
22. The celebrated author Tyabji in his Mahommedan Law (3rd edition) has succinctly given the following definition:--
By the Khalit or participator in appendages, is meant the owner of property to which is annexed or on which is imposed a private right of way or of water or other easement or appendage such right being also annexed to, or imposed upon, the subject of preemption.
23. The conspectus of the observations and definitions by the aforesaid scholars clearly manifests that the person claiming right of pre-emption to repurchase the property, which has been sold, must be a participator in the immunities or appendages over the said property. Clearly the enjoyment of some other property and exercise of any common right therein by the two owners of two properties would not make them shafi-i-khalit in order to have a right of pre-emption over each other''s property. The person claiming such right in a suit must qualify himself to be a participator in immunities or appendages existing over the suit property. The observations in a Bench decision in the case of
...It is common ground that under the Mahomedan Law a person, who is a participator in immunities and appendages, such as a right of way or a right to discharge water, has got a preferential right to another person who may simply be an owner of the adjoining property without having any easement rights over the suit property....If, however, the plaintiff was not only a neighbour but was a participator in immunities and appendages, in other words, if he was a dominant or a servient owner in connection with the house sought to be pre-empted, he would have a preferential right to a person who was only an owner of the adjoining house....
24. In the case of
...It is contended, however, on behalf of the appellant that if his claim as a sharik fails, he is still entitled to come in as a pre-emptor in the second degree or khalit, that is, one who is a sharer in the appurtenances of the estate. But it cannot be said that the roads or the well, or the tank or the rent free land or the occupancy holdings left undivided were appurtenances to the mahal. By the term appurtenances is meant facilities or amenities peculiar to the owner of an estate but derived not from the estate itself but by easement from the estate of another. In the case before us the roads and well, etc., which the plaintiffs ask us to regard as appurtenances to the mahal are not part of the estate of another. Common tenancy in these roads and wells is not an appurtenance to the plaintiffs'' estate, but actually a part of it....
(Emphasis supplied)
25. Similar is the view expressed in the decision in the case of
26. Considering the facts of this case, in view of the aforementioned judicial pronouncements, it is evident that the plaintiff has nowhere claimed that he has exercised any right over the suit property i.e., the house which has been allotted to the father of defendant no. 2 in the partition of the year 1954. His claim of pre-emption, after the said house has been sold by the defendant no. 2 to the defendant no. 1, is based upon the right of user over some land and a drain which have been left undivided and are to be commonly used by the plaintiff and the defendant no. 2. The land, which has been left in common between plaintiff and defendant no. 2 in the partition, has a separate identity which fact has also been accepted by the plaintiff in his deposition as P.W. 3 wherein he has stated that the common passage has been given a separate plot number in the municipal survey. It is also evident that after the admitted partition in the family in the year 1954, the plaintiff no more remained a co-sharer with regard to the house allotted to the defendant no. 2. The passage and drain, which have been left in common enjoyment of the plaintiff and the defendant no. 2, cannot be regarded as appurtenances to the allotted house of the plaintiff rather they are its part. The plaintiff has been enjoying the passage and the drain in his own right and not by way of, easement over the property of the defendant no. 2. In this view of the matter, the plaintiff, on the basis of his own case, does not come within the category of a person who can claim right of pre-emption as shafi-i-khalit over the suit house. The utmost right which the plaintiff can claim is that his right of enjoyment of the common land and drain should remain unaffected. From the sale deed (Ext.-4), it does not appear that the said common passage or the drain has been sold away rather from the boundaries mentioned in the sale deed, it is manifest that the common passage has been shown in the northern boundary and the common drain has been shown in the western boundary. The defendant no. 1, as a purchaser from the defendant no. 2, definitely has got only the right and title which his vendor-defendant no. 2 had in the transferred property.
27. Much emphasis has been led by the learned counsel for the plaintiff-respondent upon the decision of the Apex Court in Bhau Ram''s case (supra) for the proposition that even having a common entrance from the street with other properties or a common staircase with other properties has been held to be a valid foundation for the exercise of the right of pre-emption in case of the sale of such properties. The learned court below has also upheld the said proposition relying upon the aforesaid decision by the Apex Court. In this regard, it is relevant to point out that the plaintiff has not pleaded such modification or addition, by custom, in the general rule of Mahommedan Law of preemption in case of shafi-i-khalit as enunciated by the authorities which have been above discussed. There is also no material or evidence on behalf of the plaintiff to establish that the customary right of pre-emption as shafi-i-khalit has been extended to the person holding property having a common entrance from the street or having a common staircase with the property sought to be pre-empted.
28. It is worth noting that such a right of pre-emption has been specifically conferred by Section 16 of the Punjab Pre-emption Act No. 1 of 1913, the validity of which was under consideration before the Hon''ble Supreme Court alongwith the validity of the statutory law of preemption enacted by some other States, in Bhau Ram''s case (supra). In the said decision, their Lordships have upheld the validity of the said provision of the Punjab Act but nowhere in the said judgment, such provision has been held to be the part of the customary Mahommedan Law relating to shafi-i-khalit. The learned court below has wrongly interpreted the said decision of the Apex Court and has misconceived the said decision as appertaining to the customary rules of Mahommedan Law of pre-emption. In the State of Bihar, as abovementioned, there is no enactment by legislature with regard to law of pre-emption dealing with urban immovable property, and thus the claim of pre-emption, here, will have to be adjudicated on the basis of the general customary rules of Mahommedan Law. In this view of the matter, the submission on behalf of the plaintiff-respondent for accepting the right of pre-emption in view of the decision in Bhau Ram''s case (supra) cannot be accepted. It is also held that the learned court below has wrongly relied upon the decision of Bhau Ram''s case (supra) for upholding the right of the plaintiff of preemption on the basis of common passage and drain.
29. Examining this matter from another angle, also, it is not disputed that the purchaser-defendant no. 1 is not a stranger to the family of the plaintiff rather admittedly he is a kinsman of the plaintiff being his cousin (brother). As discussed earlier, the very purpose of evolution of the rule of pre-emption has been to avoid a stranger from acquiring a property which would amount to intrusion into the privacy of a family. The presence of the defendant no. 1 in the suit house can in no sense be taken to be intrusion into the privacy of the plaintiff entitling him to a right to pre-emption against him.
30. The submission on behalf of the learned Senior Counsel for the appellant is that with the advent of multi-storied buildings consisting of a number of individually owned apartments, the major changes in the social and economic structure of the society and radical statutory changes with regard to the right to property, the survival of the customary law of pre-emption on the basis of khalit needs re-examination. In my view, this submission may befittingly be considered in appropriate cases later but it would suffice to observe that according to the well settled law, the right of pre-emption is a weak right and therefore, the necessary requirements for allowing the claim of preemption must be strictly found (See
...To hold property is a constitutional right in terms of Art. 300-A of the Constitution of India. It is also a human right. Right to hold property, therefore, cannot be taken away except in accordance with the provisions of a statute. If a superior right to hold property is claimed, the procedures therefor, must be complied with. The conditions precedent therefor must be satisfied. Even otherwise, the right of pre-emption is a very weak right, although it is a statutory right. The court, while granting relief in favour of a pre-emptor, must bear it in mind about the character of the right, vis-�-vis, the constitutional and human right of the owner thereof....
31. From the perusal of the impugned judgment, it is clear that the learned court below has not approached the case with right perspective. The plaintiff''s claim of right of pre-emption as shafi-i-khalit has not been correctly decided in view of the pleadings, evidence and the settled principles in that regard. The conclusions arrived at by the learned court below, therefore, are not sustainable both on facts and on law.
32. On the basis of the above premised reasons and discussions, it is held that the plaintiff is not entitled to a right of pre-emption as claimed with regard to the suit property sold by the defendant no. 2 in favour of defendant no. 1. Ex consequenti, this appeal succeeds and the impugned judgment and decree of the court below is, accordingly, set aside. The suit filed by the plaintiff is dismissed. In the facts and circumstances of this case, however, there shall be no order as to costs.
