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Mirzunnissa Vs. Fayaz HusaIn and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in2Ind.Cas.468
AppellantMirzunnissa
RespondentFayaz HusaIn and ors.
Cases Referred and S. Sundaram Ayyar v. The Municipal Council of Madura and
Excerpt:
pre-emption - muhammadan law--two houses connected by a public road. - - pre-emption and no direct authority is quoted where it has been held that in the circumstances like the present a right of pre-emption under the muhammadan law has been held to exist. the case is not altogether free from difficulty, but after giving the matter my best consideration, i think the decision of the courts below was correct, dealing with this matter mr. baillie in his treatise on the muhammadan law, at page 482, says as follows :in like manner, when there is a thoroughfare, which is not a private property, between two mansions (that is, when they are situate on opposite sides of the way), and one of them is sold, there is no pre-emption, except for the adjoining neighbour. ' 2. without going into the..........in question was situate in the village and was connected with the house of the pre-emptor by a public thoroughfare. the appellant contends that although the road was a public thoroughfare, nevertheless the soil in the road remains vested in the co-sharers, subject to a right of the public to use it as a roadway. in support of this contention he relies on the cases of nihal chand v. azmat ali khan 7 a. 362; tota v. sardul singh 10 a. 553 and s. sundaram ayyar v. the municipal council of madura and the secretary of state for india in council 25 m. 635. the cases did not arise out of suit's for. pre-emption and no direct authority is quoted where it has been held that in the circumstances like the present a right of pre-emption under the muhammadan law has been held to exist. the case.....
Judgment:

Richards, J.

1. This was a suit for preemption based on the Muhammadan Law. There is no dispute about the facts as they have been presented to me. The property sold consisted of certain zamindari property and two houses. The plaintiff sought only to pre-empt the zamindari property. The defendant pleaded that the plaintiff was entitled to pre-empt one house and his suit must be dismissed inasmuch as he has not claimed pre-emption in respect of the said house. It became necessary then to decide whether or not the plaintiff had a right to pre-empt the house. Both the vendor and the pre-emptor were co-sharers in the village. The house in question was situate in the village and was connected with the house of the pre-emptor by a public thoroughfare. The appellant contends that although the road was a public thoroughfare, nevertheless the soil in the road remains vested in the co-sharers, subject to a right of the public to use it as a roadway. In support of this contention he relies on the cases of Nihal Chand v. Azmat Ali Khan 7 A. 362; Tota v. Sardul Singh 10 A. 553 and S. Sundaram Ayyar v. The Municipal Council of Madura and the Secretary of State for India in Council 25 M. 635. The cases did not arise out of suit's for. pre-emption and no direct authority is quoted where it has been held that in the circumstances like the present a right of pre-emption under the Muhammadan Law has been held to exist. The case is not altogether free from difficulty, but after giving the matter my best consideration, I think the decision of the Courts below was correct, Dealing with this matter Mr. Baillie in his Treatise on the Muhammadan Law, at page 482, says as follows : In like manner, when there is a thoroughfare, which is not a private property, between two mansions (that is, when they are situate on opposite sides of the way), and one of them is sold, there is no pre-emption, except for the adjoining neighbour. If the road be private property, it is the same as if it were no thoroughfare. A thoroughfare which does not give the right of pre-emption is a street that the people residing in it have no right to shut.'

2. Without going into the question as to the rights of the zamindars in the soil of the road, it is perfectly clear that neither the vendor nor the pre-emptor has any right to close the road or to place any obstacle thereon. It is dedicated to the public for all time to be used as a public road. In the present case it is not shown what was the origin of the rights of the public. The rights of the public, for all we know to the contrary, may have been anterior to the rights of the co-sharers. It seems to me that it would be an extension of the Muhammadan Law of pre emption to hold that the mere fact that two houses are connected by a public road running through the zamindari property of the pre-emptor and the vendor gave rise to a right of pre-emption. I dismiss the appeal with costs.


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