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Rokaiya Begam Vs. Ahmadi Khanam and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in16Ind.Cas.109
AppellantRokaiya Begam
RespondentAhmadi Khanam and ors.
Cases ReferredJog Deb Singh v. Muhammad Afzal
Excerpt:
.....to retain the property as against the plaintiff. in my opinion, the plaintiff has failed to establish a right to pre eruption against the vendee, and i dismiss the appeal with.....chamier, j.1. this is a plaintiff's appeal in a suit for pre-emption of house property the first court decreed the claim, saying that although both the plaintiff and the vendee were sharers in the appendages (shafi-i-khalit), the plaintiff, being a sunni was entitled to pre-empt the property as the vendee was a shia and the shia law does not give a right of pre-emption in such a case the lower appellate court held that as the vendee was like the plaintiff a sharer in the appendages, she was entitled to retain the property as against the plaintiff. in second appeal, it is contended that the plaintiff is entitled to a decree, because the shia law does not recognize shafi-i-ltkalit in such a case. it is also contended that both the grounds on which the lower appellate court has held that the.....
Judgment:

Chamier, J.

1. This is a plaintiff's appeal in a suit for pre-emption of house property The first Court decreed the claim, saying that although both the plaintiff and the vendee were sharers in the appendages (Shafi-i-khalit), the plaintiff, being a Sunni was entitled to pre-empt the property as the vendee was a Shia and the Shia law does not give a right of pre-emption in such a case The lower Appellate Court held that as the vendee was like the plaintiff a sharer in the appendages, she was entitled to retain the property as against the plaintiff. In second appeal, it is contended that the plaintiff is entitled to a decree, because the Shia law does not recognize Shafi-i-ltkalit in such a case. It is also contended that both the grounds on which the lower Appellate Court has held that the vendee is a Shafi-i-khalit are untenable. In support of the first contention, I was referred to a decision of the Calcutta High Court in Jog Deb Singh v. Muhammad Afzal 32 C. 982 : 9 C.W.N. 326 but that case seems to me to be irrelevant. I think it is clear than if a Sunni claims pre-emption on the ground that he is a sharer in the appendages, he cannot oust a vendee, who is in the same position, whether that vendee is a Shia, Sunni or a Hindu There can be no doubt that the plaintiff is a Shafi-i-khalit. Indeed, this is not disputed. The vendee pleaded that she was in a similar position because her vendor's house opened on to the same galli or lane and because she had a right to discharge water on to the vendor's house. At the trial, a third ground seems to have been put forward, namely, that the water from the vendor's and vendee's house drained away down the same lane. The Munsif rejected the first ground because the only evidence on the subject showed that the lane was a public lane. He upheld the second ground and said nothing about the third. The lower Appellate Court upheld the first ground and said nothing about the second and third grounds and it found a fourth ground proved, namely, that the water from the vendor's and the vendee s houses flowed down the same mod or drain. This last ground was never suggested by the vendee in his pleadings, and seems to have been discovered by the Judge when he went to inspect the place. The parties had no opportunity of giving evidence about it, and it must, I think, on this ground alone be put out of consideration. The only evidence that there is about the lane is that it is a public lane. According to the decision of this Court, the face that two houses open on to the same public lane or that the water from two houses drains away down the same public lane, does not give the owner of one house a light of pre-emption over the other. There can be no doubt that the vendee has a right to discharge water on to a part of the property in question. She is, therefore, in the position of a Shafi-i-khalit. But it is said that the property sold consists of two separate houses, and that the vendee has a right to discharge water into only one of them. 1 he plan on the record shows that the property consists of two enclosures. But it was sold as one house under one number Ali. Niamat Ali, the house-tax Ahalmad, said that in the old register the property was entered under two numbers, but that in the new register it bears one number only. The plan shows and the learned Judge has noted that there is a door between the two enclosures.

2. As the property was sold as one house and is now entered in he register as one house, and the two enclosures communicate with, each other, I must hold that the property must be regarded as one house for the purposes of pre-emption. From a passage in the judgment of the lower Appellate Court, I gather that the learned Judge was of opinion that there was really only one house. In my opinion, the plaintiff has failed to establish a right to pre eruption against the vendee, and I dismiss the appeal with costs.


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