Full Judgment Text
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PETITIONER:
A RAZZAQUE SAJANSAHEB BAGWAN AND ORS.
Vs.
RESPONDENT:
IBRAHIM HAJI MOHAMMED HUSAIN
DATE OF JUDGMENT: 14/10/1998
BENCH:
G.T.NANAVATI, S.P.KURDUKAR
ACT:
HEADNOTE:
JUDGMENT:
JUDGMENT
NANAVATI. J.
The plaintiff-respondent claiming a right of
pre-emption on the ground of being ’Shafi-i-jar’ and
’Shafi-i-sharik’ filed a suit in the Court of Civil judge,
Senior Division. Sholapur being Special Civil Suit No. 376
of 1990 and prayed for a decree of pre-emption and also for
a direction to the appellants to sell the suit property for
the price mentioned in the sale deed executed by their
sisters in his favour. The trial Court on appreciation of
the evidence lad by the parties held that the respondent was
no longer a co-sharer, as in the suit filed by the sisters
for partition a decree was passed in their favour and in the
execution proceedings, Suit House No. 85 went to the two
sisters and the appellant became the owner of House No.
84-B. The Trial Court, therefore, held that the appellants
did not fall into class I of the persons who are entitled to
claim pre-emption under the Mohammedan Law. It further held
that the appellants who were defendants in the suit have
also their property adjoining to House No. 85 and,
therefore, they are also entitled to claim the right of
pre-emption. As the respondent and the appellants belong to
the same class both are entitled to half share in the suit
property. Accordingly, it partly decreed the suit. The
respondent was directed to deposit Rs. 92,500/- in the
Court and the appellants were directed to execute a sale
deed for half the suit property.
Feeling aggrieved by the judgment and decree passed
by the Trial Court the appellants preferred an appeal to the
High Court. No appeal or cross objections were filed by the
respondent. The High Court dismissed the appeal on the
ground that it was without any substance. The appellants
have therefore, filed this appeal challenging the judgment
and order passed by the High court.
The contention of the learned counsel for the appellants is
that the only ground on which the plaintiff’s suit has been
decreed is that he being a ’shafi-i-jar’ was entitled to
claim the right of pre-emption. He submitted that this
Court in Bhau Ram V. B. Baijnath Singh. 1962 Suppl. (3)
SCR 724 and in Sant Ram and Ors. V. Labh Singh and Ors.
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964 (7) SCR 756 has held that law of pre-emption based on
Vicinage is void. Unfortunately, attention of the High
Court was not drawn to these two decisions of this Court
and, therefore, the High Court did not consider this aspect.
As the very basis of claim has been held to be
unconstitutional by this Court, the suit filed by the
plaintiff ought to have been dismissed. We, therefore allow
this appeal, set aside the judgment and order passed by the
High Court and dismiss the suit filed by the respondent. It
will be open to the respondent to withdraw the amount
deposited by him in the Trial Court. There shall be no
order as to costs.