1. This is a defendant's appeal arising out of a suit for pre-emption on the basis of Mahomedan Law. The plaintiffs' claim is based on an alleged right as a shafi khalit. The property sold consists of undivided shares in a plot of land adjacent to the house of Nazir Ahmad, plaintiff. There is also a tamarind tree standing in the compound of Nazir Ahmad which overhangs its branches on the spot in question. This plot is divided into two portions by what is called a kucha public road, but the plot appears to be one plot and there has been no partition of the shares of the co-sharers.
2. The learned Judge has held that Nazir Ahmad has no right to claim to be a shafi khalit, because his tree spreads branches over the neighbouring land. He has relied on the case of Hari Krishna Joshi v. Shankar Vithal  19 Bom. 420, as authority for the proposition that the overhanging branches confer no right of easement to the owner of the tree. It also appears to us that this circumstance does not give the plaintiff rights as a shafi khalit. In the foot-note to Chapter II, page 481 of Baillie's Mahomedan Law, Volume 1, it is noted that
though rights of water and way are given as examples, it does not appear that a khalit in any other right than this has the right of pre-emption.
3. We must, therefore, reject this claim.
4. As regards the further claim that Nazir Ahmad's drain flows through this plot, the learned Judge has found that this drain in reality did not exist, but was a temporary arrangement invented for the purposes of this litigation. This claim must also be rejected.
5. The defendant, however, contends that inasmuch as the kucha public road passes through the plot, the portion which lies away from the house should not be allowed to be pre-empted. It does not, however, appear that the land covered by this road belongs to the public. The land is in reality a part of this plot though the public have a right to pass through it. Under these circumstances, the finding of the Court below, that the whole area is a compact one, must be accepted and the plaintiff is entitled to pre-empt the whole of that plot: Abdul Shakur v. Abdul Ghafur  7 A.L.J. 641.
6. We accordingly dismiss this appeal wit costs, including fees in this Court on the higher scale.