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Raza Hasan and ors. Vs. Mohammad YasIn and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1927All155
AppellantRaza Hasan and ors.
RespondentMohammad YasIn and ors.
Excerpt:
- - but clearly this argument cannot be accepted. the plaintiffs' suit was bound to fail and was rightly dismissed......the lower appellate court. the finding of the learned subordinate judge is that on the date of the sale sought to be preempted nazar husain, plaintiff no. 4, had no interest in the pre-empted property. it is found that he acquired a share in the mahal some time after the execution of the sale-deed now challenged. in view of this finding the learned subordinate judge applied section 21 of the agra pre-emption act and dismissed the whole suit. section 21 of the act lays down that:where a person having a right of pre-emption sues jointly with a person not having such right, he shall lose his right.2. the first ground of appeal taken here is that the court below has misinterpreted section 21 of the agra pre-emption act; it seems to be argued that because the plaintiff no. 4 had acquired an.....
Judgment:

1. The plaintiffs' suit for pre-emption has been dismissed by the lower appellate Court. The finding of the learned Subordinate Judge is that on the date of the sale sought to be preempted Nazar Husain, Plaintiff No. 4, had no interest in the pre-empted property. It is found that he acquired a share in the mahal some time after the execution of the sale-deed now challenged. In view of this finding the learned Subordinate Judge applied Section 21 of the Agra Pre-emption Act and dismissed the whole suit. Section 21 of the Act lays down that:

where a person having a right of pre-emption sues jointly with a person not having such right, he shall lose his right.

2. The first ground of appeal taken here is that the Court below has misinterpreted Section 21 of the Agra Pre-emption Act; It seems to be argued that because the Plaintiff No. 4 had acquired an interest in the mahal prior to the date of suit his case was not within the mischief aimed at by this section. But clearly this argument cannot be accepted. A reference to the definition of 'right of preemption contained in Section 4, Clause (9) of the Act shows that a right of pre-emption is a right of a person on a transfer of immovable property to be substituted in place of the transferee by reason of such right. And so the right of pre-emption which it is sought to enforce by suit must be a right which was in existence at the date when the sale sought to be pre-empted was made. Sections 8, 9, 10 and 11 of the Act also support this construction. If is clear that on the date on which the sale in dispute took place the Plaintiff No. 4 had no right of pre-emption the violation of which could give him a cause of action for joining in the suit. The decision of the Court below is correct.

3. Another point is raised in the second ground of appeal concerning the status of the defendants-vendees. In view of what has been said this question need not be discussed now. The plaintiffs' suit was bound to fail and was rightly dismissed. We dismiss this appeal under Order 41, Rule 11.


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