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Abdul Ghafur Vs. Ghulam HusaIn and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in(1913)ILR35All296
AppellantAbdul Ghafur
RespondentGhulam HusaIn and anr.
Excerpt:
civil procedure code (1908), order xxi, rule 88 - execution of decree--sale in execution--pre-emption--title of pre-emptor defeasible. - harry griffin and chamier, jj.1. this was a suit by the appellant for possession of a share in patti mumtaz-ud-din in mahal fakir bakhsh, mauza mani umarpur. this share was put up for sale on the 20th of september, 1910, in execution of a decree of a civil court. the plaintiff's bid was rs. 530. the respondents offered the same amount and the share was knocked down to them under order xxi, rule 88, on their showing that they had purchased two other shares in the same patti on the 11th of august, 1910. the appellant was at the time the holder of a share in the other patti in the mahal, namely, patti fakir bakhsh, but held no share in patti mumtaz-ud-din. his case is that he was at the time of the sale a co-sharer within the meaning of order xxi, rule 88, and that the respondents must be.....
Judgment:

Harry Griffin and Chamier, JJ.

1. This was a suit by the appellant for possession of a share in patti Mumtaz-ud-din in mahal Fakir Bakhsh, mauza Mani Umarpur. This share was put up for sale on the 20th of September, 1910, in execution of a decree of a civil court. The plaintiff's bid was Rs. 530. The respondents offered the same amount and the share was knocked down to them under Order XXI, Rule 88, on their showing that they had purchased two other shares in the same patti on the 11th of August, 1910. The appellant was at the time the holder of a share in the other patti in the mahal, namely, patti Fakir Bakhsh, but held no share in patti Mumtaz-ud-din. His case is that he was at the time of the sale a co-sharer within the meaning of Order XXI, Rule 88, and that the respondents must be regarded as strangers, inasmuch as their title to the shares purchased by them on the 11th of August, 1910, was at the time defeasible and they have since been compelled to surrender those shares to the appellant under decrees for preemption obtained by him on the 8th of July, 1911, and the 31st of January, 1912.

2. It appears that mahal Fakir Bakhsh was recently the subject of an imperfect partition at which the two pattis were constituted. It appears also that the whole of the land comprising the original mahal lies either in one patti or the other, there being no shamilat patti. In these circumstances it is a nice question whether the 'undivided property' for the purposes of Order XXI, Rule 88, is the whole mahal or only the patti Mumtaz-ud-din. But we need not decide this question, for, in accordance with the decisions of Knox, A.C.J., and Tudball, J., in Kamta Prasad v. Mohan Bhagat (1909) I.L.R., 32 All., 45 and of Stanley C.J., and Burkitt, J., in Nabihan Bibi v. Kauleshar Rai (1907) 4 A.L.J., 351 on appeal from the decision of Richards, J., in 3 A.L.J., 426, we feel bound to hold that the defeasible title to the shares in patti Mumtaz-ud-din acquired by the respondents in August, 1910, did not give them the right to pre-empt the share now in question as co-sharers.

3. We allow this appeal, set aside the decrees of the courts below, and decree the appellant's claim to possession of the share in question with costs in all three courts.


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