Muhammad Rafiq and Piggott, JJ.
1. The three second appeals, Nos. 1371, 1372 and 1373, arise out of three preemption suits instituted by Abdul Baqi Khan against Sadiq Ali and others, in the year 1918. Two of them were instituted in the court: of the Munsif and the third in that of the Subordinate Judge.
2. In order to understand the pleadings in the case, it is advisable to give a pedigree of the parties to the three appeals.
AZMATULLAH| ------------------------------------------------------------------------------------------------| | | | |Abdullah Ghulam Hashmat Ali Kariman. Three otheralia Hingan. Muhammad | | daughters.| | Sadiq Ali | | --------------------------- -------------------| | | | | || Anwar Ali. Sakina Bibi. Amina Bibi Abdul Baqi. Abdul Sattar.|------------------------------------------------|----------------------------------------------------------------------| | |Abdul Karim Halim-un-nissa. Maliam Bibi.
3. Musammat Sakina Bibi was married 1o Abdul Karim Khan. Some time ago, a house was purchased by Azmatullah and his son Abdullah alias Hingan, in equal shares. Some years afterwards, Sadiq Ali, son of Hashmat Ali, sold his interest in the house to Ghulam Muhammad. The latter also acquired the shares of his three sisters other than Musammat Kariman. In 1909 Ghulam Muhammad sued for partition against the other members of the family, whose shares he had not purchased, and obtained a decree. In 1915 Abdul Karim Khan and his sister, Halim-un-nissa, brought a suit for the recovery of their shares against Musammat Kariman and others. The chief defence to the suit was put forward by Abdul Baqi who was also a defendant in the case. He resisted the suit by pleading adverse possession. The claim was decreed by the learned Munsif on the 7th of August, 1915. On appeal, the decree of the first court was set aside on the plea that the claim was barred by the principle of res judicata. Thereupon Abdul Karim filed a second appeal to this Court which was admitted in November, 1915, and the case was remanded by thin Court, on the 15th of November, 1918, for trial on the merits. While the second appeal was pending in this Court, Abdul Karim and his wife, Musammat Sakina Bibi, executed, on the 22nd of December, 1917, two sale-deeds, in respect of their separate shares in the house mentioned above, in favour of Sadiq Ali. On the 15th of March, 1918, Anwar Ali sued to recover possession of their shares on the ground of pre-emption. The claim was brought against the vendors, Abdul Karim and Sakina Bibi, as also against Sadiq Ali, the vendee. On the 14th of May, 1918, the vendee and Anwar Ali the pre-emptor entered into a compromise, by which not only the sale-deed of the 22nd of December, 1917, was allowed to remain but Anwar Ali agreed to convey his own share also to Sadiq Ali. On the 20th of August, 1918, a decree was passed by the learned Munsif, in the suit of Anwar Ali, in terms of the compromise filed. On the 7th of September, 1918, Abdul Baqi instituted two suits on the basis of pre-emption against Sadiq Ali, namely, one in respect of the transfer made by Sakina Bibi and the second in respect of the transfer of the share of Anwar Ali under the compromise of the 14th of May, 1918, which was incorporated into the decree of the 20th of August, 1918. On the 16th of December, 1918, a third suit was instituted by Abdul Baqi against Sadiq Ali in respect of the transfer made by Abdul Karim on the 22nd of December, 1917, in favour of Sadiq Ali. Of these three suits, the suit relating to the transfer of Anwar Ali was instituted in the court of the Subordinate Judge of Cawnpore. The other two suits were filed in the court of the Munsif and were transferred to the file of the Subordinate Judge. Sadiq Ali resisted all the three suits on various grounds. The evidence for all the parties in the three suits was recorded in Anwar Ali's case and one judgment governed all the three suits. The learned Subordinate Judge, after a careful consideration of all the evidence in the case, came to the conclusion that the plaintiff's claim in all the three suits should fail. He was of that opinion, in respect of the transfers of Abdul Karim and Sakina Bibi, on the ground that the two demands required by the Muhammadan law had never been made. In the suit of Anwar Ali he was of opinion that as the transfer was by means of a decree, no right of pre-emption could be asserted.
4. Abdul Baqi preferred three appeals from the decree of the learned Subordinate Judge. The lower appellate court disagreed with the first court on the evidence and came to the conclusion that the two demands required under the Muhammadan law were made. The learned Judge of the lower appellate court was definitely of opinion that the first demand of the talab-i-mawasibat was made as soon as the plaintiff pre-emptor heard of the sales of Abdul Karim and Sakina Bibi. As to the second demand, he was also of opinion that it was made on the spot where the property transferred is situate. As to the transfer by Anwar Ali, the learned Judge was of opinion that the transfer was not, properly speaking, by a decree of a court, but, in any case, in the circumstances, the plaintiff pre-emptor had the right of pre-emption. The decrees of the first' court were accordingly set aside and the claim of the plaintiff pre-emptor was decreed in all the three suits.
5. Sadiq Ali has preferred the three appeals before us. We take up first the appeals that relate to the transfer made by Abdul Karim and his wife Sakina Bibi, on the 22nd of December, 1917. Three objections are urged on behalf of the appellant to the findings of the lower appellate court. It is urged, on behalf of the appellant, that the learned District Judge misread and misquoted the evidence of Rajjab Beg, and was not, therefore, justified in disagreeing with the first court and holding that the first demand was made by the plaintiff pre-emptor. The second objection is that, on the evidence of Rajjab Beg himself, the demand, if made, was of no value as no sale had taken place at the time the matter was reported by Rajjab' Beg to the plaintiff pre-emptor. The third objection is that the second demand, on tha evidence for the plaintiff pre-emptor, was an invalid demand under the Muhammadan law. The learned Counsel for the appellant has cited case law in support of his second and third objections. We think it sufficient to remark with regard to the first objection that, after hearing the evidence of Rajjab Beg read, we are not prepared to agree with the contention of the learned Counsel for the appellant that the lower appellate court has misread or misquoted the statement of Rajjab Beg. The learned Judge of the lower appellate court was quite justified in interpreting the evidence of Rajjab Beg as he has done and his finding on that point is a finding of fact which we are not permitted to disturb. We do not think that there is much force in the second objection also. It also depends upon the interpretation of the evidence of Rajjab Beg. The learned Judge of the lower appellate court has construed the statement of Rajjab Beg to mean that he reported to the plaintiff pre-emptor that a sale of the shares of Abdul Karim and Sakina had taken place. The plaintiff pre-emptor was justified on that evidence, to make the first demand. It would serve no useful purpose, in view of our finding on the third objection, to discuss the case law as to when should the first demand be made, that is, whether the first demand should be made when the sale is completed under the provisions of Act IV of 1882, or when the sale, according to the intention of the parties, has been completed. We think that the third objection of the appellant must prevail. The learned District Judge has not come to a clear finding on the question whether at the time of making the second demand the plaintiff pre-emptor called the attention of his witnesses to the fact that he had already made the first demand. The finding of the lower appellate court upon this point is in the following words:
As regards the affirmatory demand it was urged on behalf of the respondent that it was irregular, that the witnesses who had accompanied the plaintiff appellant to the premises were not called upon to bear witness to the fact that the immediate demand had already been made. This is true as far as the evidence of the witnesses is concerned, though the plaintiff himself states that the witnesses were invoked after the second demand on the premises. Even assuming that there was no special invocation, the -requirements of Muhammadan law were sufficiently complied with when the talab-i-istishhad was made in the presence of the witnesses in whose presence the immediate demand had been made: Chotu and Ors. v. Husain Bakhsh (1893) A.W.N. 101.
6. The learned Counsel for the respondent pre-emptor asks this Court to consider this finding as a finding that at the time of the second demand the plaintiff had called the attention of his witnesses to the fact that he had made the first demand.
7. We are unable to accede to this contention. The language of the learned Judge just quoted above would not bear any such interpretation. After reciting that the witnesses had not stated that at the second demand their attention was called by the plaintiff to the first demand, the learned Judge goes on to say that the plaintiff states that he had done so. The learned fudge stops there and goes on to the consideration of the case from another point of view, taking it for granted that the plaintiff had not called the attention of his witnesses to having made the first demand. We are, therefore, of opinion that the learned Judge; of the lower appellate court did not hold that lie believed the evidence of the plaintiff pre-emptor, not only uncorroborated but against the statements of his own witnesses. There were only two courses open to us, either to remand the ease to the court below to get a definite finding on the question raised, or to hear the evidence ourselves and record a finding. We have adopted the latter course. We have heard the evidence for the plaintiff pre-emptor read to us in extenso and criticized. We have no hesitation in holding that the plain-trill's statement uncorroborated by any of his witnesses cannot be believed and we do not believe it. We, therefore, hold that the second demand deposed to by the plaintiff and his witnesses was an invalid demand under the Muhammadan law. This finding would, at first sight, dispose of the two appeals, Nos. 1372 and 18715, but the contention on behalf of the plaintiff pre-emptor is that, even assuming the omission at the second demand referred to above, the requirements of the Muhammadan law are sufficiently complied with when the ialab-i-istishhad is made in the presence of the witnesses in whose presence the first demand was made. In support of this contention, reliance is placed on the cases of Chotu and Ors. v. Husain Bakhsh Weekly Notes 1893 p. 101 and Muhammad Usman v. Muhammad Abdul Ghafur (1911) I.L.R. 34 All. 1. The first case was considered by several learned Judges of this Court subsequent to 1893 and was dissented from; vide the case of Mubarak Husain v. Kaniz Bano (1904) I.L.R. 27 All. 160. We would also refer to the cases decided in other High Courts on the same point, namely, those of Sarjug Singh v. Jagmohan Singh (1919) 51 Indian cases 40 and Rujjub Ali Chopedar v. Chundi Churn (1890) I.L.R. 17 Calc. 543. The case of Muhammad Usman v. Muhammad Abdul Ghafur (1911) I.L.R. 34 All. 1 does not really touch upon the question under discussion. In that case it was decided that the two demands may be combined together if the vendor and the vendee are present at the time the demand is made or the demand is made on the property sold. In the present case it is not pretended that when either of the two demands was made the vendor or the vendee was present or that the first demand was made on the property. We, therefore, hold that the claim of the pre-emptor fails. We allow the appeals of Sadiq Ali in respect of the transfer made by Abdul Karim and Sakina Bibi i.e., we allow appeals Nos. 1372 and 1373.
8. The appeal No. 1371, as we have already stated above, related to the transfer made by Anwar Ali. We need not discuss the question whether any right of pre-emption accrued to Abdul Baqi because the transfer was in terms of a compromise, which compromise was embodied in the decree. Sadiq Ali, according to our decision in appeals Nos. 1372 and 1373, had acquired a good title on the 22nd of December, 1917, in the house in question. He thus became a co-sharer of Anwar Ali by virtue of his purchase of the 22nd of December, 1917. The share of Anwar Ali was not transferred till the 27th of August, 1918. Abdul Baqi's right of pre-emption is based upon vicinage. Sadiq Ali had, on the 27th of August, 1918, a better and a superior right of pre-emption to chat of Abdul Baqi. The claim of the latter, therefore, with regard to the share of Anwar Ali, also fails.
9. We allow appeal No. 1371 also.
10. The result is we allow all the three appeals, Nos. 1371, 1372 and 1373 of 1919, set aside the decrees of the court below with costs to Sadiq Ali of all the courts.