M.B. Sharma, J.
1. This is defendants' second appeal arising out of a suit for pre-emption. The subject matter of the suit out of which the present second appeal arises is a portion described in para 3 of the plaint, of a house described in para 1 of the plaint situated in Chaukri-pirani-Basti. Jatka-koa ka Rasta, Jaipur. Smt. Phool Kanwar appellant No. 1 the vendor sold her portion in the house to the appellants Gopal and Smt. Durga Devi appellants Nos. 1 and 2 respectively, the vendees, for a consideration of Rs. 2,000 on June 13. 1960 and the sale deed was registered on August 5. 1960.
2. Hari Dutt Sharma, the respondent instituted the pre-emption suit on July 3, 1961 in the court of Munsif East, Jaipur against the appellants in which the claim for pre-emption was based on first degree i.e. Shafe-i-Sharik because the building in which the house of the respondent and the appellants were situated had ioint staircase, Chowk. Pol and latrine.
3. The suit was contested by the vendor and the vendees namely the appellants, on the ground that the appellants had offered the suit portion of the house to the respondent before the sale and after the sale. The offer was made to the respondent to purchase the house for Rs. 2,000/-, but the respondent declined the offer saying that the value of the suit portion of the house only ranged from Rs. 500 to 700/-. Thus the respondent waived his right to purchase the suit protion of the house and as such, has lost his right of pre-emption. A case also set up in the written statement by the appellants that in the former Jaipur State, the right of pre-emption was co-extensive with the Mahomedan law of pre-emption and, therefore, the respondent had failed to aver and prove the existence of a custom of pre-emption in the Jaipur City as well as having failed to aver and prove that the talabs were made by the respondent, the suit for pre-emption cannot be decreed. It was lastly averred that during the pendency of the suit for pre-emption, the vendees have improved their position by purchasing Chandani adjoining the suit portion of the house and, therefore, they have also become co-sharer and have thus become pre-emptor of the same class as the respondent. The suit for pre-emption, therefore, could not have been decreed.
4. The learned trial court framed many issues and after trial, decreed the suit of the respondent. The appeal filed by the appellants also failed.
5. The learned trial court which tried the suit held (1) that it is established by judicial decisions that there was a custom of pre-emption prevalent in the former Jaipur State and. therefore, it was not necessary for the respondent to aver in the plaint and prove the existence of such a custom which by recognition by courts become the law, (2) that a suit for pre-emption relating to the Chandani allegedly purchased by the vendees as a result of which the vendees claim to be co-sharers, having been filed against the vendees by the respondent and that suit being pending the right of pre-emption of the respondent cannot be defeated, (3) that no offer to sell the suit portion of the house for Rs. 2,000 was ever made by the vendor or the vendees or both to the respondent either prior to the sale or after the sale, and as such, the respondent did not waive his right to preempt the property. (4) that even otherwise under the Mahomedan law by mere declining the offer to purchase the house prior to the sale, a right of pre-emption if any, does not come to an end.
6. The learned lower appellate court while dismissing the appeal of the appellants besides concurring with the learned trial court on the above findings, also held that in the former Jaipur State, the custom of pre-emption was generally known and judicially recognised and, thus, it was not necessary for the respondent to plead and prove the existence of such a custom; that it was necessary for the appellants to have taken a plea in the written statement about non-making of 'talabs' and because as to whether 'talabs' were made or not, is a question of fact and law both, but more of facts, therefore, the appellants cannot be allowed to raise this point; that the sale of Chandani during the pendency of the suit was also subject to the right of pre-emption of the respondent and that right was asserted by the respondent by filing the suit for pre-emption relating to the Chandani and, therefore, by purchase of the Chandani. the right of pre-emption of the respondent relating to the suit portion of the house does not come to an end. Consequently, the appeal was dismissed as stated above.
7. The first contention of the learned advocate for the appellants is that it does not appear from the plaint as to On what basis the suit for pre-emption, whether on some statute or custom, was baaed. Therefore, in the absence of any such averment, the suit for preemption could not have been decreed. Submits, learned advocate for the appellants, that custom is a question of fact and as such its existence in the city of Jaipur where the said property was situated must have been pleaded. The learned lower appellate court while repelling this contention of the learned counsel for the appellants has observed that in the former Jaipur State, the custom of pre-emption was prevalent and has all through been judicially recognised, therefore, it had the force of law and in the plaint only the facts are to be pleaded and not law. I may state here that under Order 6, Rule 2 C.P.C. only material facts on which the party pleading relies in his claim or defence, as the case may be, are to be contained in the pleadings. Generally the existence of a custom or usage is a question of fact and if the claim is based on the existence of custom or which is not generally known and judicially recognised, it should be pleaded in the plaint. It can hardly be disputed that in the former Jaipur State, the custom of pre-emption was generally known and judicially recognised and thus, such a custom had the force of law in the former Jaipur State and law was not to be pleaded in the plaint. The famous author Mulla in 'Principles of Mahomedan Law' 18th Edition by M. Hidayatullah. former Chief Justice of India at page 257 in Section 229 has observed :--
'The right of pre-emption is recognized by custom among Hindus who are either natives of, or are domiciled in Bihar, Sylhet and certain parts of Gujarat, such as Surat, Broach and Godhra, and it is governed by the rules of the Mahomedan law of pre-emption except in so far as such rules are modified by such custom.
Where the existence of any such custom is generally known and judicially recognized, it is not necessary to assert to prove it.'
It is, thus, clear that where the existence of any custom of pre-emption is generally known and judicially recognised, it is not necessary for the plaintiff to aver or prove the same. In Sant Ram v. Labh Singh (AIR 1965 SC 314) and Ram Rakh v. Mst. Gulab (1956 Raj LW 336): (AIR 1955 Raj 140), it has been held that custom and usage having in the territory of India the force of law must be contemplated by the expression 'all laws in force' under Article 13(3)(b) of the Constitution, in Civil Appeal No. 287/Samwat 1990 decided on 27-10-36 Mst. Mathura v. Mst. Ramiano, (1936) ILR 10 Jaipur 39 a Pull Bench of the former Jaipur 'High Court recognised the existence of a custom of pre-emption based on Mahomedan law but in its modified form in former Jaipur State, A learned single Judge of this Court in Civil Second Appeal No. 261/71, Prabhu Narain v. Suraj Narain decided on April 28. 1972 held that customary right of pre-emption founded on the Mahomedan law stood modified under a gazette notification dated 15th April. 1927. I shall refer later on to that Gazette notification. In view of this discussion, I am of the opinion that because the custom of pre-emption was generally known and judicially recognised in former Jaipur State, it was not necessary for the respondent to plead and prove the existence of a custom of pre-emption in the city of Jaipur. That apart, it appears from the pleadings of the parties that the parties were never in contest so far as the existence of custom of preemption in the former Jaipur State is concerned. The parties, therefore, were alive to the issue and, therefore, also the argument of the learned advocate for the appellants has no force.
8. The next contention of the learned advocate for the appellants that making of talabs is necessary under the Mahomedan law on which the custom of pre-emption was based in Jaipur State and because it is not pleaded by the respondent, he cannot exercise right of pre-emption, also has no force At the cost of repetition I will refer to Section 229 of Mulla's 'Principles of Mahomedan Law' 18th Edition, which has been extracted above in extenso and wherein it has clearly been laid down that if the right of pre-emption is recognised by custom among Hindus and it is governed by rules of Mahomedan law of pre-emption except in so far as such rules have been modified by such custom, then it is not necessary to plead and prove its existence. In the former Jaipur State, a notification was published in the Jaipur gazette dated 15th April. 1927, which modified the rules of Mahomedan law so far as the making of 'talabs' is concerned. The aforesaid gazette or notification reads as follows :--
'Dated Jaipur, the 7th April, 1927. No. 2155/J-l-148--Whereas it is expedient to give all possible claimants formal notice of a sale, with a view to facilitate their assertion of pre-emptive right without recourse to litigation, the following rules have been passed by the Council of State, and they shall come immediately into force;--
1. When any person proposes to sell any property in respect of which any persons have a right of pre-emption, he shall give notice to the persons concerned of
(a) the property, and
(b) the price at which he is willing to sell it. Such notice shall be given through the Court within the local limits of whose jurisdiction the property or any part there of is situate.
2. Any person, having a right of pre-emption in respect of any property proposed to be sold shall lose such right, unless within three months from the date of service of such notice he or his agent pays or tenders through the Court the price aforesaid to the person so proposing to sell.
3. Any person entitled to a right of pre-emption may bring a suit to enforce such right on any of the following grounds (namely) :--
(a) that no due notice was given as required by Rule 1;
(b) that tender was made under Rule 2 and refused;
(c) that the price stated in the notice was not fixed in good faith,'
A bare reading of the above notification would make it clear that a right of pre-emption is dependent on the ground that a notice as required by the aforesaid notification was not given by the vendor of his proposed sale to the person who has a right of pre-emption and it did not at all depend upon the making of 'talabs'. The aforesaid notification came up for consideration in Prabhu Narain's case (supra) and as already observed above, it was held that under the notification, the customary right of pre-emption founded on Mahomedan law stood modified and the right of pre-emption did not depend upon the making of 'talabs', in the former Jaipur State. In Mst. Mathura's case (supra), a Full Bench of the High Court of the former Jaipur State, after referring to the cases decided by the old council and also by Chief Court wherein it was held that 'talabs' are not necessary when the claim is not based On Mahomedan law and is based on custom held as follows :--'The omission of talabs does not, therefore, affect the plaintiffs' right of pre-emption, as the reciprocity between them and the vendor is on the basis of custom and not of the Mohammedan Law.'
9. It was further held in the aforesaid Full Bench authority as follows :--
'Mohammedan Law would, therefore, apply where both the vendor and preemptor happen to be Mohammedans. If a Mohammedan claims pre-emption on a sale by a Hindu or if the order be reversed, the claim is based on custom and not on Mohammedan Law. Therefore, custom but not Mohammedan Law will determine the right in this case.'
10. The learned advocate for the appellants has placed reliance on Audh Behari Singh v. Gajadhar Jaipuria. (AIR 1954 SC 417) and Ahmad Bux v. Ramvilas (1952 Raj LW 245) but the aforesaid cases will not apply to the instant case but as stated earlier in the former Jaipur State, the rules of Mohammedan Law with regard to a right of pre-emption were in existence as a custom but in a modified form and the making of 'talabs' was not necessary. Even in Audh Behari's case (supra), it has been held that when a right of pre-emption rests upon custom it becomes the lex loci or the law of the place. In Ahmad Bux's case (supra). which was from Bhilwara area, it has been held that there was no evidence of custom different from and not co-extensive with Mohammedan law. In the former Jaipur State where the suit property is situated, the customary right of pre-emption founded on Mahammedan law stood modified. Therefore. Ahmad Bux's case will not apply. Therefore, I am of the opinion that making of 'talabs' was not necessary in the former Jaipur State before the pre-emptor could exercise his right of pre-emption.
11. Yet next contention of the learned advocate for the appellants is that the suit for pre-emption was filed by the respondent on July 3, 1961 and the trial court decreed the suit for pre-emption on April 29. 1967. Before the suit was decreed, the vendees purchased a Chandani on April 16, 1965 and became co-sharers of the same class as the respondent and having improved their right during the pendency of the suit, the right of pre-emption of the respondent was defeated. The learned lower appellate court before whom a similar argument was advanced observing that a right of pre-emption relating to that Chandani had also been exercised by the respondent and the suit was pending, held that under the circumstances the right of pre-emption of the respondent for the suit portion of the house is not defeated. In Sultan v. Masitu. (AIR 1926 All 749), the vendee acquired new property during the pendency of the suit for pre-emption under a sale deed which was still liable to pre-emption on the date when the first court passed its decree. It was held that the second sale was also liable for pre-emption and, therefore, the right of pre-emption is not defeated. In Tara Chand v. Radha Swami (AIR 1934 All 343) (FE), it was held that the burden of proving that an indefeasible title is acquired under a deed of exchange is upon the vendee and he must discharge it. In Satar Mohammed v. Sarafuddin, (AIR 1962 J&K; 79), it was held that a pre-emption must have a subsisting right of pre-emption on (1) the date of sale, (2) the date of institution of the suit and (3) the date of the decree. The vendee can acquire a right of pre-emption before the date of the decree and can non-suit the plaintiff.
12. In my opinion, whether the pre-emptor has a right of pre-emption relating to a sale of property is to be seen on the date of the suit as well as on the date of decree. If during the pendency of the suit, the vendee purchases some other property as a result of which he becomes pre-emptor of the same class as the plaintiff, then if the plaintiff has a right of pre-emption relating to that property (newly purchased) also and asserts his right, the right of pre-emption of the plaintiff is not defeated because he asserts his right of pre-emption relating to the second sale also. No doubt if the new purchase of the property is not subject to a right of pre-emption of the plaintiff or he does not assert it within time prescribed by law the matter will be different. Therefore. I am of the opinion that in the instant case the purchase of the Chandani by the vendees during the pendency of the suit does not defeat the right of pre-emption of property of the respondent.
13. The suit for pre-emption was filed on July 3. 1961. Lock at the Calendar for the civil courts for the year 1961 shows that there were summer vacations up to 2nd July. 1961 and thus, the suit having been filed on the re-opening of the courts on July 3, 1961 was filed within one year of the accrual of the cause of action. That apart, under Article 10 of the Limitation Act. 1908 which corresponds to Article 97 of the new Limitation Act, 1963 if the subject matter of the sale does not admit of physical possession of the whole or part of the property then the right of pre-emption, whether the same is founded on law or general usage, is to be enforced within one year from the date when the instrument of sale is registered. It is not disputed in the instant case that the vendees were already in possession of the suit property as tenant? when they purchased the same from the vendor. As such under the sale deed physical possession was not taken because it was already with the vendees. The sale deed though was executed on June 13, 1960 but it was registered on Aug. 5. 1960 and. therefore, the period of one year is to be counted from that date. As al-ready mentioned above there were summer vacations in the month of June. 1961 and the courts re-opened on 3rd July. 1961. Therefore, also the suit was filed within limitation.
14. There is no force in this appeal and it is hereby dismissed with costs.