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Jamna Prasad Vs. Mohammad Zahir UddIn Khan and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1929All366
AppellantJamna Prasad
RespondentMohammad Zahir UddIn Khan and anr.
Excerpt:
- .....includes buildings which are attached to the earth. we may in this connection point out that the expression 'attached to the earth' has been defined in section 3, t.p. act. as meaning rooted in the earth or embedded in the earth as in the case of walls or buildings. there is no reason to suppose that expression in this act has a different meaning. it is by virtue of such a definition that house property is treated as immovable property under the transfer of property act and also under the general clauses act vide abdul khan v. shakira bibi : air1928all124 . the last point is that opportunity should have been given to the appellant to produce the executive engineer or a tahsildar. no application to examine them was filed in the trial court. there was a mere request for local.....
Judgment:

1. Three points have been urged in this appeal. The first is that an isolated plot of land is not pre-emptible under the act. We are unable to accept this condition. Under Sections 11 and 12 a right of pre-emption accrues in favour of the cosharers in the mahal oven when a petty proprietary interest is transferred.

2. The second point is that the land covered by buildings is exempted from the operation of the Act. This contention also cannot be accepted. Section 4, sub-Clause (3) makes the Act applicable to land which includes things attached to the earth or permanently fastened to anything attached to the earth, when sold or foreclosed along with the land to which they are attached. This in our opinion, includes buildings which are attached to the earth. We may in this connection point out that the expression 'attached to the earth' has been defined in Section 3, T.P. Act. as meaning rooted in the earth or embedded in the earth as in the case of walls or buildings. There is no reason to suppose that expression in this Act has a different meaning. It is by virtue of such a definition that house property is treated as immovable property under the Transfer of Property Act and also under the General Clauses Act vide Abdul Khan v. Shakira Bibi : AIR1928All124 . The last point is that opportunity should have been given to the appellant to produce the Executive Engineer or a Tahsildar. No application to examine them was filed in the trial Court. There was a mere request for local investigation by a commissioner. Instead of appointing a commissioner the Munsif went to the spot and inspected the place personally. The learned District Judge has thought that further evidence cannot be allowed in those circumstances. We are unable to take a contrary view. The appeal is accordingly dismissed with costs including in this Court fees on the higher scale.


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