1. This is an appeal by the plaintiff in a suit for a declaration that he has, as the owner of the house adjoining the suit house, a better right to buy it than the defendant who purchased it from its owner for Rs. 13,101. The plaintiff's house is situated to the south of the suit house while the defendant's house is to its north. Originally the plaintiff's house as well as the suit house belonged to one Ambalal Shivlal. The latter sold both the houses to Devshankar at different dates. Thereafter Devshankar's grandson Hariprasad Somnath sold the suit house to the original defendant, who is now dead, in 1935. The defendant had purchased his own house to the north of the suit house in 1919 from a stranger. The sale-deed of the suit house in the defendant's favour was passed on May 23, 1935, and the plaintiff's case in substance was that on that date he was at a place called Ghodasar at some distance from Ahmedabad where the suit house is situated. He was the karbhari of the Thakor Saheb of Ghodasar. He had occasion to come to Ahmedabad on May 26, which was a Sunday, for bringing some money of the Thakor Saheb to Ahmedabad where he had to make payments to certain persons. On arrival there at about twelve o'clock he went to the house of a friend in the neighbourhood named Hariprasad Vaidya and there he learnt from one Jamnadas, a common acquaintance of his and Hariprasad, that the suit house was sold by its owner Hariprasad Somnath to the defendant. The plaintiff says that immediately on coming to know of it he there and then expressed his desire to purchase the suit house in the presence of several persons who were present in Hariprasad Vaidya's house, and on returning to his home, which is situated almost opposite to Hariprasad Vaidya's house, he called two pleaders and the witness Laxman Dudhia, and in their company went to the suit house and made the demand for purchasing it. The purchaser, however, was not in that house and he was in his shop nearby, whereupon they all went to the shop and the plaintiff informed him in the company of the witnesses that he had come to know of the sale of the suit house, and as soon as he came to know he expressed his desire to purchase it and he was prepared to pay him the price which he had paid to the owner as he wished to exercise his right of pre-emption for the house.
2. Under the Mahomedan law of pre-emption, which admittedly governs the parties in this case and which applies to the Hindus in the city of Ahmedabad, it is necessary that a pre-emptor should make demands known as talabs. The first talab is called talab-i-mowashibat, and the second, talab-i-ishad. For performing the first talab it is necessary that the shaft or pre-emptor must declare his intention to assert his right as pre-emptor immediately on receiving information of the sale. It is not necessary that he must do so in the presence of any witnesses, nor is it necessary that he must make any offer or tender the price at that stage. Wherever he is, as soon as he comes to know of the sale either by oral intimation or by a letter, he must express his desire to claim his right of pre-emption even though nobody may be present at that time. For the talab-i-ishad, it is necessary that, with the least practicable delay after the first talab is made, the pre-emptor should make the second talab in which he must expressly refer to the fact that the first talab had been made and he must make a formal demand either in the presence of the buyer or the seller or on the premises and in the presence of at least two witnesses.
3. The plaintiff's case is that he has complied with both these formalities. The first demand, according to him, was made as soon as he came to know of the sale for the first time in Hariprasad Vaidya's house at about noon on the 26th, and immediately thereafter the second talab was made along with his witnesses before the purchaser, i.e. the defendant, where reference was made to the first talab and the plaintiff expressed his readiness to pay the price which the defendant had paid to his vendor. The plaintiff's case is that as between him and the defendant, who are both neighbours on two opposite sides of the suit house, the plaintiff has got a preferential right of pre-emption because by virtue of the ownership of his house he has got certain rights of easement over the suit house. Those rights are (1) the right of way over the khadki of the suit house, (2) the eaves of the suit house fall into the plaintiff's chowk, (3) the windows of the suit house on the two floors overlook the plaintiff's chowk, (4) the drain water of the plaintiff's house passes through the khadki of the suit house, (5) the plaintiff has on the suit khadki a chokdi and a water pipe of his house, and lastly (6) there is a joint wall between the plaintiff's house and the suit house up to the plaintiff's chowk. 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. The plaintiff's case, therefore, is that he is entitled to a preferential right, and that, his right does not simply extend to half of the suit property which would be the case if he were a mere neighbour, but to the whole of it by virtue of the rights of easement which he possesses.
4. The heirs of the defendant, who have been brought on the record after the death of the defendant during the pendency of the suit, deny all the allegations in the plaint. Their case is that none of the two talabs or demands had been made by the plaintiff, that the plaintiff's case that he came to know of the sale for the first time on the 26th was not true, that his case that as soon as he came to know of the sale on the 26th at Hariprasad Vaidya's house, he expressed his desire to assert his right as a pre-emptor was also not correct and that the further allegation that he' performed the second talab in the presence of witnesses was also not true. It is important to note in this connection that in his notice to the defendant which he gave on July 9, 1935, i.e. about six weeks after the sale, the plaintiff had stated that the defendant had purchased the suit house for Rs. 13,101 and that when he came to know of that on the 26th, he, in the exercise of his tight of pre-emption, performed all the legal formalities both the times in the presence of sufficient number of witnesses and at both the times went with the amount to show that he was prepared to purchase the suit house. The defendant in his reply to the plaintiff's notice stated that he did not accept the plaintiff's statement that he had performed both the formalities in the presence of witnesses as required and declared on both occasions his intention to purchase the property for the full consideration after performing all the legal formalities
5. Upon these pleadings the material issues contested between the parties were as to whether the plaintiff proved that he was entitled to pre-empt and that he had a preferential right to pre-emption, and, secondly, if the plaintiff was entitled to pre-empt, did he prove that he performed the requisite formalities in time The learned Judge found on those two issues that the plaintiff was entitled to pre-empt but that it was not necessary to decide whether he had a preferential right to pre-emption because of his finding on. the other issue, namely, that the plaintiff had not performed the requisite formalities in time. The requisite formalities consisted in the making of the first and the second talabs. But with regard to the second talab the learned Judge observes that it was not seriously disputed by the defendants that the plaintiff had performed the second talab, and he also held that the plaintiff did perform it. The dispute, according to the learned Judge, centred round the first talab.
6. Now, as I said before, the plaintiff's case was that he did not know of the sale till the noon of the 26th when he returned to Ahmedabad. His son Hariprasad was in Ahmedabad and working in a mill. He also did not know about the sale and therefore did not inform the plaintiff. But as the plaintiff wanted to enquire from Hariprasad Vaidya about the whereabouts ?of a certain Swami, whom the plaintiff wanted to see, he went to Hariprasad Vaidya's house to enquire about it. There were some persons in his house at that time. One was Jamnadas whom the plaintiff knew before. Another was one Ambalal and there was also one Chimanlal. When he went up to Vaidya's house and enquired about the whereabouts of the Swami, Jamnadas informed him about the sale of the suit house to the. defendant Thereupon the plaintiff said that as a neighbour it was his first right to take the house and he expressed his desire to buy it at the price paid by the defendant. He says that he repeated three times that he would buy the house. While returning home he informed a pleader Mr. R.P. Swaminarayan who is living in the neighbourhood of Vaidya's house and asked Mr. Swaminarayan to accompany him to the defendant's house for making the second demand. The plaintiff says that he also sent for another pleader Mr. Ramprasad Lakhia. Thereafter he also sent for the witness Laxman Dudhia, who is living opposite the plaintiff's house. Thus in company of the two pleaders and the witness Laxman Dudhia and also Hariprasad Vaidya the plaintiff went to see the defendant at the suit house. But as the party did not find him there, they went to the defendant's shop at Shawka's Wadi which was nearby. They found the defendant and his two sons there and the plaintiff told them that he had declared his intention to pre-empt the house as soon as he learnt of the sale and in the presence of witnesses, that he expressed his intention to buy it at the price paid by the defendant and requested him to pass a sale-deed accordingly. The plaintiff's case is that the defendant then replied to him that his vendor had asked him not to sell the house to the plaintiff, but that the defendant did not want to fight with the plaintiff and requested him to wait for some time. Thereafter, the plaintiff returned home, and ate the defendant did not do anything in the matter, the plaintiff gave him the notice and then filed the present suit.
7. [After discussing the evidence at considerable length, the judgment proceeded :?] It is quite true that the plaintiff in his first notice refers to his having taken the consideration with him at the time of the first talab. He also speaks of his having made the talab three times. In law it is not necessary to take the whole or any part of the consideration at the time of making the first or the second talab, nor is it necessary to make the first demand three times as it is necessary to do so in the case of the talak or divorce. But this statement of the plaintiff in the notice is challenged by the defendant himself in his reply, and the evidence at the trial shows clearly, in our opinion, that the plaintiff did not take the whole of the amount with him but that he might have taken an amount of Rs. 3,000, nearly two thousand of which he had brought from Ghodasar and the rest he had taken from his house at the time of making the second talab. It is necessary under the law that the pre-emptor should express his desire to purchase the house at the same price as was paid, by the purchaser unless that price was not paid in good faith. But it is not necessary to tender the amount at any stage. The plaintiff probably thought it necessary or was advised to keep some amount with him in order to show his bona fides, and therefore he seems to have taken an amount of about. Rs. 3,000 with him at the time of making the second talab. But with regard to the first talab, notwithstanding the plaintiff's own statement in the notice, the evidence does not establish that he took the whole of the amount with him at the time of making the first talab. That being so, in our opinion, the whole of the reasoning of the learned Judge on the first talab, which is based upon the delay which must have been caused by the plaintiff in collecting the large amount, falls to the ground.
8. [On further examination of the evidence the conclusion reached was:] In our opinion, therefore, the plaintiff's evidence, corroborated as it is by three witnesses, establishes that he went to the house of Vaidya, and on coming to know of the sale, he made the first demand.
9. Then the question is whether the plaintiff is believable when he says that, he first came to know about the sale when he went to Vaidya's house .... We think, therefore, that the learned Judge is wrong not only in holding that the plaintiff must have come to Ahmedabad on the 25th, but in holding further that even if he came to Ahmedabad on the 26th, he was aware of the sale-deed before he did so and that he made the first talab sometime after knowing about the sale....
10. Then with regard to the second talab the learned Judge has not dwelt upon it because it was not seriously disputed before him that the plaintiff had made the second talab. It is, however, contended in this Court by Mr. Coyajee on behalf of the defendant that even the second talab was not properly made because under the law it must be made not only with the least practicable delay after the first talab, but that it must be made in the presence w? nesses who must be specifically invoked for the purpose of that talab.
11. With regard to the interval between the two talabs, all that the law requires is that there must be least practicable delay, and in our opinion the evidence shows that as soon as the plaintiff returned from Vaidya's house to his own house, he sent his son to collect the witnesses, and after they had arrived, the whole party soon went to the suit house and thereafter to the defendant's shop. No unreasonable delay has been made out in making the second talab. In Baijnath Ram Gaenka v. Ramdhari Chowdhry : Deo Nandan Pershad v. Ramdhari Chowdhry (1907) L.R. 35 IndAp 60 the interval between the two talabs was more than twenty days during which time the pre-emptor had consulted lawyers and had informed the police about the dispute. It was still held that the interval was not unreasonably long.
12. Mr. Coyajee has then contended that the formalities of pre-emption must be strictly observed and clearly proved, and that as stated in Hedaya the right of shufa is a feeble right as it involves the disseizing another of his property. His contention is that the plaintiff could have immediately taken the very persons, who were present at Vaidya's house, as witnesses for the second talab. In other words, he could have combined the making of the two talabs together and he need not have gone to his house for the purpose of collecting witnesses and sent his son to call other persons because only two witnesses were required and they were already present at Vaidya's house. It is true that he could have done so if he had liked, but if the plaintiff wanted to procure satisfactory and reliable evidence for his second talab, and if therefore he sent his son to fetch the two pleaders one of whom was living just opposite his house, and if the whole party gathered together in a short interval, it cannot be said that the plaintiff made any unreasonable delay in going to the defendant's shop along with the witnesses. Then on the point of specific invocation, Mr. Coyajee has relied upon a passage in Ameer Ali's Mahomedan Law, 4th edn., Vol. I, p. 725, in which it is stated that the preemptor must say in the presence of his witnesses to the following effect :- 'Such a person bought such a property of which I am the shaft; I have already claimed my right of shufa and now again claim it, be therefore witnesses thereof'. It is contended that none of the plaintiff's witnesses has stated that the plaintiff addressed them in this manner and that therefore the ceremony had not been validly made. For this purpose reliance is placed upon the decisions in Jadu Sing v. Rajkumar, (1870) 4 Beng. L.R. 171 Abdul Rahim v. Maidhar Gazi, (1928) I.L.R. 55 Cal. 1181 Pachumuddin v. Abdul Gaffur, (1937) 42 C.W.N. 300 and Abdul Majid v. Taibbatennessa Bibi. (1940) 44 C.W.N. 698 With regard to the actual invocation of the words 'Be ye witnesses thereof', it is no doubt true that the plaintiff's witnesses do not say so. In our opinion, however, it is not obligatory under the Mahomedan law to utter this formula. It is sufficient if the witnesses are informed by the plaintiff of his right to pre-empt and they are taken to the purchaser for the purpose of attesting the talab. The decisions in Calcutta relied on by the respondents are to the effect that the invocation of the formula is obligatory, but the Allahabad High Court has taken the contrary view in its latest decision in Imam-ud-din v. Muhammad Rais-ul-Islam I.L.R. (1930) All. 1005 where relying upon a passage in Baillie's Mahomedan Law it has been held that in making the second talab it is not absolutely necessary to use the words 'Be ye witnesses to this' addressed to the witnesses or otherwise to physically invoke them to be witnesses. The learned Judges have quoted with approval the statement of Baillie in his Digest on Mahomedan Law that the invocation of witnesses was not required to give validity to the second demand but only in order that the pre-emptor may be provided with proof in case the purchaser should deny the demand. It is further observed that it mattered little whether the witnesses were brought by the pre-emptor from his house or were picked up on the way or were chosen from those present with the vendee. What was necessary was that in order to have proof that the second demand was duly made there ought to be at least two witnesses available to support the preemptor. Their mere presence on the scene, if they were inattentive and did not hear the demand being made, so as to he unable to give evidence in support of it, would of course be insufficient; but so long as they heard the demand being made and can bear testimony to it, there seemed to be no defect in the demand. To hold otherwise would be to reduce the law to an absurd technicality. In our opinion, the view taken in that case is sensible as well as reasonable and not against the spirit of the Mahomedan law. It is not necessary that the actual formula 'Be ye witnesses thereof' should have been uttered by the pre-emptor. We think, therefore, that the first and the second talabs have been properly and validly made by the plaintiff.
13. Now, if the plaintiff was only a neighbour of the suit house along with the defendant, he would not be entitled to pre-empt the whole house because as held by our High Court in Vithaldas Kahandas v. Jametram, I.L.R. (1920) 44 Bom. 887, where two or more persons are equally entitled to pre-empt a property, each one of them is entitled to an equal share in it. 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. On this point it is rather unfortunate that the learned Judge has not made any finding even though an express issue was raised. He has ignored the direction so often repeated by the Privy Council that in all cases open to appeal the trying Judge should determine and give findings on all the issues, so that the appellate Court might have the benefit of the view of the evidence taken by the trying Judge and need not remand the case. As he was of the opinion that the plaintiff had not established that he had made the first talab, he did not think it necessary to decide whether he had a preferential right of pre-emption. We have, however, gone through the material evidence on this question. That evidence consists firstly of several decisions between the parties, in which the plaintiff's right with regard to several easements has been established. There were about three or four litigations from 1904 to 1929, and it has been established that the plaintiff has a right of way over the khadki of the house, that the eaves of the suit house fall into the plaintiff's: chowk, that the windows of the suit house on the two floors overlook the plaintiff's chowk, that the drain water of the plaintiff's house passes through the suit khadki, that the plaintiff has on the khadki a water pipe and a chokdi which he was entitled to use, and that there was a joint wall between the houses up to the plaintiff's chowk. The plaintiff is also a servient owner with respect to the suit house inasmuch as the eaves of the suit house fall into the plaintiff's chowk so that the rain water of the suit house falls into the plaintiff's chowk. It is, therefore, clear in our opinion that on the strength of those rights of easement which the plaintiff possesses he would be entitled to a preferential right. But it is contended on behalf of the defendants that the property which is conveyed to the defendants does not consist of one house but of two houses one of which is the front portion consisting of the khadki, ota, etc., and the second portion consists of the house proper lying behind the khadki. It is urged that in the new survey of 1922 two separate sanads were issued; one was issued in respect of the khadki which was given survey No. 2677 and the other in respect of the main house behind the khadki which was given survey No. 2676. Before that there was a sanad, exhibit 89, of the whole of the suit house issued in 1878 under Act IV of 1868. There the suit house was given survey No. 198/1-2-3. The argument is that at the time when the sale took place there was not one house but two houses, and if the plaintiff had any rights of easement, they were attached to the khadki portion of the house, that is, to one of the property only, and did not attach to the house itself, and that the plaintiff would, therefore, be entitled to preempt the front portion or the khadki portion exclusively, but that as regards the house itself the defendant would be entitled to half of it, he being also an adjoining owner. Now, in that connection it is material to see how the suit house has been described in the sale-deed by which it is conveyed to the defendant. It says that the vendor had received from his ancestors a house with a khadki in front of it, It is further stated that there was a chowk in front of which chowk there was the door of that house and in front of the door was the khadki No. 2677 'belonging to this house'. Over the whole of the khadki there was a middle storey and over it there was a third storey. The house sold has been described as the house with the khadki attached to it at several places in the sale-deed. It is no doubt true that the two separate numbers, 2676 and 2677, have been mentioned in the sale-deed, but it is absolutely clear that the khadki as well as the storeys above the khadki are described as belonging to the house as well as attached to it, and the whole of the property consisting of the house with the khadki has been sold under the sale-deed. In our opinion, the house being given two separate survey numbers in the survey does not necessarily establish that they are two separate properties. The survey really speaking is of the land and not of the houses. Originally one survey number was given to the whole property and three peta numbers. Although in the new survey two separate numbers have been given to the different portions of it, that would not necessarily mean that so far as the owners were concerned the house with the khadki was not treated as one house but the house and the khadki were considered as two separate properties. In fact if the khadki portion with the storeys above it were alienated to one person, there does not appear to be any way to go into the inner house itself. The sale-deed shows that the khadki was a part of the house itself. The plaintiff has got several easement rights over the khadki. The chowk, which is situated between the khadki and the back portion of the house, is simply a connecting link between the two portions of the same house and is not between two separate properties. What we have to look to is how the property was sold, and there is no doubt that the property was sold as one property by the vendor under the very sale-deed by which the defendants have acquired their title. We are, therefore, of opinion that the plaintiff has a preferential right of pre-emption not simply over the khadki portion of the house but over the whole house, and as he has properly and validly performed both the talabs, he would be entitled to the right of pre-emption for the whole house.
14. For these reasons we think that the plaintiff is entitled to the reliefs which he has claimed.
15. The appeal is, therefore, allowed, the decree of the lower Court is set aside and the plaintiff's suit is decreed as prayed for with costs in this Court as well as in the trial Court. The form of the decree will be as provided in O. XX, Rule 14, of the Civil Procedure Code, and the date mentioned in Sub-rule (1)(a) will be August 1, 1942.
16. In Civil Application No. 989 of 1940, it is directed that the door opened by the defendants after the decision of the trial Court should be closed by them.