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Haji Hasan Ali Vs. Mian Jan Khan and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in7Ind.Cas.409
AppellantHaji Hasan Ali
RespondentMian Jan Khan and anr.
Excerpt:
civil procedure code (act xiv of 1882), section 316 - auction, purchaser--absolute title from the date of confirmation--pre-emption--right to pre-empt, when arise in favour of auction purchaser. - .....out of which this appeal has arisen, to enforce under the wajib-ul-arz his right to pre-empt the share sold by mianjan khan to muhammad taqi. both the courts below dismissed the claim, on the ground that the plaintiff was not a share-holder in the property in respect of which he claims the right to preempt at the time when the share was sold, namely, the 23rd of july, 1907.2. in appeal to this court it was contended that the appellant acquired his title from the date of sale and not from the date of confirmation of the sale. looking to the terms of section 316 of the code of civil procedure of 1882, which was the law governing the matter at the time the suit was brought, we have no doubt that the view taken by the courts below was the right view. the plaintiff did not become hissedar.....
Judgment:

1. For the purposes of this second appeal it is necessary to note that the appellant, Hasan Ali, purchased a share in a certain mahal at an auction sale on the 20th of June, 1907. The sale did not become absolute until the 24th of July, 1907. On the 23rd of July, 1907, one Mianjan Khan, a share-holder in the same mahal, sold his share by private sale to one Muhammad Taqi. The present appellant has brought the suit, out of which this appeal has arisen, to enforce under the wajib-ul-arz his right to pre-empt the share sold by Mianjan Khan to Muhammad Taqi. Both the Courts below dismissed the claim, on the ground that the plaintiff was not a share-holder in the property in respect of which he claims the right to preempt at the time when the share was sold, namely, the 23rd of July, 1907.

2. In appeal to this Court it was contended that the appellant acquired his title from the date of sale and not from the date of confirmation of the sale. Looking to the terms of Section 316 of the Code of Civil Procedure of 1882, which was the law governing the matter at the time the suit was brought, we have no doubt that the view taken by the Courts below was the right view. The plaintiff did not become hissedar of the mahal until the date when the sale became absolute, and his right to pre-emption could not arise until the sale had been confirmed in his favour. We may point out that by the present Code of Civil Procedure, Section 65, the law has been altered in this respect. Some misapprehension appears to us to prevail as to the meaning of the words used in Section 316, viz., 'So far as regards the parties claiming through or under them' In Dagdu v. Panchamsing Gangaram 17 B. 375, Telang, J., treats these words as though they meant that the Court purported to convey an absolute title to the purchaser. But a Court acting under Section 316 does not guarantee title; all that it does is to convey the right, title and interest in the property of the parties to the suit before it. So far as these parties are concerned it guarantees that the judgment-debtor shall not recover back the property sold, and that from the date entered in the certificate the purchaser becomes entitled to whatever interest the judgment-debtor was possessed of on the date when the sale was held. We think that the words mentioned above were used to preclude any suggestion that the interests of third parties were affected by the certificate that the title to the property sold has vested in the purchaser. The appeal is dismissed with costs including fees in this Court on the higher scale.


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