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Abdul Shakur Vs. Abdul Ghafur and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Judge
Reported in6Ind.Cas.358
AppellantAbdul Shakur
RespondentAbdul Ghafur and anr.
Excerpt:
muhammadun law - pre-emption--several adjoining plots of land sold 'by one sale--vicinage only to one plot--pre-emption of all plots. - - 833 and 834, the map clearly shows that both these plots do not adjoin plot no. we see no good reason for so disintegrating the integer so sold as has been done by our learned colleague, and for holding that plot no......two plots nos. 833 anti 834 and also a part of plot no. 836. the' plaintiff is a share-holder in a plot of land no. 837, which adjoins portion of plot no. 836, which with the other two plots forms the subject-matter of the sale. the claim of the plaintiff to pre-empt is based on a provision of the wajib-ul-arz of the tillage according to which it has been rightly held that the rule of the muhammadan law as to pre-emption applies. the plaintiff claims the right to pre-empt by virtue of vicinage. plot no. 836, as we have said, adjoins the plaintiff's holding; plot no. 834 adjoins plot no. 836; and plot no. 833 adjoins plot no. 834. the subject-matter of the sale is, therefore, a compact parcel of land adjoining the land of the plaintiff.2. both the courts below decreed the plaintiff's.....
Judgment:

1. The question raised in this appeal is a narrow one. In the suit, (sic) of which it has arisen, the plaintiff-appellants claimed to be entitled to pre-empt a sale of few bighas of land in Mauza Inampur, which were sold by the defendant Musammat Najiban to the defendants-respondents Abdul. Ghafur and Abdul Shakur. The parcel of land so sold comprised two plots Nos. 833 anti 834 and also a part of plot No. 836. The' plaintiff is a share-holder in a plot of land No. 837, which adjoins portion of plot No. 836, which with the other two plots forms the subject-matter of the sale. The claim of the plaintiff to pre-empt is based on a provision of the wajib-ul-arz of the Tillage according to which it has been rightly held that the rule of the Muhammadan Law as to pre-emption applies. The plaintiff claims the right to pre-empt by virtue of vicinage. Plot No. 836, as we have said, adjoins the plaintiff's holding; plot No. 834 adjoins plot No. 836; and plot No. 833 adjoins plot No. 834. The subject-matter of the sale is, therefore, a compact parcel of land adjoining the land of the plaintiff.

2. Both the Courts below decreed the plaintiff's claim. A second appeal was preferred and the learned Judge who heard it modified the decrees of the lower Courts and gave a decree for pre-emption of the portion of plot No. 830 which formed part of the subject-matter of the sale and not of plots Nos. 833 and 834. Against his decree this appeal under the Letters Patent has been preferred.

3. The learned Judge of this Court, in dismissing the plaintiff's claim in regard to plots Nos. 83 5 and 834, bases his decision upon the fact that these plots do not adjoin plot No. 837 in his judgment he says: He (the plaintiff) is, therefore, entitled to claim pre-emption in regard to the one bigha, part of No. 836, sold by the vendor. As regards the other two plots, namely, Nos. 833 and 834, the map clearly shows that both these plots do not adjoin plot No. 837, by virtue of the ownership of which the plaintiff claims pre-emption, as plot No. 836 intervenes between them. Therefore, he has no right' of vicinage as regards those two plots and his claim was not sustainable.'

4. We are unable to agree with the learned Judge in the view thus expressed. The subject-matter of the sale was a parcel of land which for convenience of cultivation or some other reason was divided into three small plots. This parcel of land adjoins the plaintiff's land and has been sold as an integer. It comprises but a small area. We see no good reason for so disintegrating the integer so sold as has been done by our learned colleague, and for holding that plot No. 836 alone and not also plots Nos. 833 and 834 adjoin plot No. 837. Baillie in his work on Muhammadan Law (2nd Edition at page 475) defines the right of pre-emption in the following terms: 'The original meaning of shoofa is conjunction. In law it is a right to take possession of a purchased parcel of land for a similar (in kind and quantity) of the price that has been set on it to the purchaser. The cause of it is the conjunction of the property of the shafee or person claiming the right with the subject of the purchase.' In Vol. Ill of Hamilton's Hedaya (at page 591), it is stated; that shoofa takes place with regard to all lands or houses, and the author adds: 'Besides, according to our tenets the grand principle of shoofa is the conjunction of property and its object to prevent the vexation arising from a disagreeable neighbour and this then is of equal force whether the thing is divisible or otherwise.'

5. Now if the grand principle of shoofa is the conjunction of property and its object is to prevent vexation arising from a disagree-able neighbour, it is clear that the object in this case would be frustrated if the decree of the learned Judge of this Court were affirmed. According to that decree the plaintiff would, no doubt, have his borders extended by the inclusion in his land of part of plot No. 836 but he would be left in the same predicament as that in which he was before pre-emption, namely that he will still have the vendees as neighbours. In our opinion with all deference to our learned brother, the subject-matter of the sale being the entire parcel of land made up of three plots--and this parcel of land adjoins the plaintiff's land--the entire subject-matter of the sale should be held to adjoin the plaintiff's land and, therefore, the plaintiff being entitled to pre-empt that by right of vicinage, he is entitled to pre-empt the entire subject-matter of the sale and not merely a part.

6. An objection has been filed under Order 41, Rule 22 of the Code of Civil Procedure, but this objection is without force. We dismiss it with costs.

7. We allow the appeal, and setting aside the decree of the learned Judge of this Court, restore the decree of the lower appellate Court with costs in all Courts, making only this modification that we extend the time for payment of the purchase-money for three months from this date.


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