Deciding Authority: The Supreme Court of India
Name of the Judges: Syed Shah Mohammed Quadri & S.N. Phukan
Date of Judgement: 05/02/2002
Facts: The suit property originally belonged to one Sakhawat Ali. The property is situated in the village Sakrawal. A part of the village was included within the municipal limit of the town of Tanda. Sakhawat Ali transferred the suit property to his wife in lieu of dower debt and the same was sold in the year 1951 to one Mohd. Makin, predecessor of the defendant-respondent who was a stranger to the village. The plaintiff-appellant being a co-sharer filed the present suit claiming right of pre-emption. The suit was contested on the grounds inter alia that only the house was sold and not the land over which plaintiff could have exercised his right of pre-emption and that right of pre-emption ceased to be available once the suit property fell within the limit of municipality of Tanda. The trial court decreed the suit holding that the transfer in question was not confined to the house alone but extended also to the housesite. Relying on four judgments of the courts of the munsif and the subordinate judge for the years 1915, 1924 to 1926, the trial court also held that such a right of pre-emption existed even after the suit property was included within the municipal limit of Tanda. Before the first appellate court a dispute was raised as to whether the suit property was situated within the town of Tanda. The court on the basis of the report of the Commissioner gave a finding that on the date of transfer of the suit property the part of the village on which the suit property was situated ceased to be an agricultural village and it became a part of urban agglomeration by being included within the municipal limits of the said town and this finding has become final. The first appellate court dismissed the appeal. The High Court allowed the second appeal filed by the defendants by the impugned judgment holding inter alia that the custom relating to pre-emption was not available in the town of Tanda and that the plaintiff could not prove the right of pre-emption of a co-sharer in respect of suit property.
Judgement: Section 7(a)of the Act speaks of a village-site and house built upon it and according to the said section existence of customary right of pre-emption can be presumed whether recorded in a settlement record or not. But under Section 8 right of pre-emption shall not be presumed to exist in any city or town and the person claiming such right of pre-emption in such area has to show and prove existence of such customs and such circumstances as the local customs prescribes. The customary right of pre-emption has not been looked upon favourably as it operates as a clog on the right of the owner to alienate the property but in view of Sections 7 and 8 of Oudh Laws Act, 1876, legislative recognition has been given to customary right of pre-emption in the area where suit land is situated, the only difference is that in respect of customary right of pre-emption over a village site and house built upon it, presumption will arise but in case of its existence in towns it has to be approved. In the Court’s opinion, the High Court erred in applying the above ratio to the case in hand only on the ground that there was a complete transformation in the social system prevailing in the cities. In view of the fact that courts recognized such customary right of pre-emption in respect of town land, the above reasoning of the High Court is not acceptable to this Court. The High Court has also recorded that there was no evidence that the custom was a continuing one. This finding is also erroneous inasmuch as the High Court overlooked the fact that this custom was not only prevalent in the town for a long period but there was no evidence from the side of the defendant that this custom was discontinued at any point of time. The Court, therefore, finds considerable force in the submission of Mr. Mishra. Mr. Dwivedi has further contended that plaintiff was not a co-sharer of the Mohal and the suit was liable to be dismissed on this ground. The contention of the learned senior counsel has to be rejected as on the facts, courts below have found that the plaintiff was a co-sharer. Relying on some provisions of the U.P. Urban Areas Zamindari Abolition and Land Reforms Act, 1957, Mr. Dwivedi has also contended that after enactment of the above Act the concept of pre-emption ceased to exist. This point is never urged either before the High Court or before the subordinate courts and, therefore, the Court needs not examine this point. Moreover, the Court has perused sections of the Act to which this Court’s attention has been drawn by the learned senior counsel and the Court is unable to accept that after coming into force of the above Act, the customary right of pre-emption ceased to exist in the area in question.
Decision:
The Court holds that the plaintiff being a co-sharer has acquired right of pre-emption over the suit property and, therefore, is entitled for a decree.
Sudipta Bhowmick, 4th Year, B.A. LL.B., KIIT School of Law
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