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Bhiki Mal and ors. Vs. Debi Sahai - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1926All179
AppellantBhiki Mal and ors.
RespondentDebi Sahai
Cases ReferredGhasite v. Govind Das
Excerpt:
- .....nothing in the provisions of the agra pre-emption act which lends support to the argument that plots situated in the abadi, mahal or village cannot be pre-empted. section 5 of the act declares that a right of pre-emption shall be deemed to exist in mahals or villages in respect of which any wajib-ul-arz prepared prior to the commencement of the act records a custom, contract or declaration importing a right of pre-emption. certain properties, by other sections of the act, are exempt from pre-emption but we can find nowhere in the act that the abadi plots which are situated in a mahal or village are so exempt. in our opinion, therefore, it cannot be contended that there is no right of pre-emption in respect of plots situated in the abadi of a mahal or village.3. another point is.....
Judgment:

Lindsay, J.

1. This case is up for admission under Order 41, Rule 11 of the Code of Civil Procedure. It is a case to which the Agra Pre-emption Act (U.P. Act 40 of 1922) applies, and two points are raised. In the first place it appears that the property which was sought to be preempted consisted of two plots in the abadi. The Courts below have held that under the Pre-emption Act these plots are liable to be pre-empted.

2. We can find nothing in the provisions of the Agra Pre-emption Act which lends support to the argument that plots situated in the abadi, mahal or village cannot be pre-empted. Section 5 of the Act declares that a right of pre-emption shall be deemed to exist in mahals or villages in respect of which any wajib-ul-arz prepared prior to the commencement of the Act records a custom, contract or declaration importing a right of pre-emption. Certain properties, by other sections of the Act, are exempt from pre-emption but we can find nowhere in the Act that the abadi plots which are situated in a mahal or village are so exempt. In our opinion, therefore, it cannot be contended that there is no right of pre-emption in respect of plots situated in the abadi of a mahal or village.

3. Another point is raised in this connexion and we are referred to the provisions of Section 19 of the Act. It appears that after the suit was brought, the vendees retransferred the property to the vendor and it is claimed that for that reason the suit for pre-emption should have been dismissed. It has often been ruled by this Court that the doctrine of lis pen-lens applies as much to pre-emption suits is to other suits and in this connexion we may cite the case of Ghasite v. Govind Das (1908) 30 All 467. It is said, however, that Section 19 of the Pre-emption Act declares that no decree for pre-emption shall be passed in favour of any person unless he has a subsisting right of pre-emption at the time of the decree. In this case it is said the plaintiff's right of pre-emption had ceased to subsist since the date on which the vendee re-transferred to the vendor and, therefore, it is said no decree for preemption can be passed under the provisions of this section.

4. We think that this section must be read as subject to the general provisions of Section 52 of the Transfer of Property Act, which embody the doctrine of lis pendens,. land we are not prepared to hold that the plaintiff's right to pre-emption ceases to exist merely because while the suit is pending the vendee has made a re-transfer to the vendor. The right, in our opinion, does still subsist by reason of the principles laid down in Section 52 of the Transfer of Property Act.

5. These are the only two points which are raised before us on behalf of the appellants. We decide them against the appellants and dismiss this appeal under Order 41, Rule 11, Civil Procedure Code.


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