Basheshar Nath and Others vs Alla Diya and Others

Soni, J.—The pltfs. brought a suit for possession by pre-emption of a residential site situate in Subzi Mandi on the main Subzi Mandi Road, Delhi, which had been sold by deft. 2 to deft. 1 by ft deed executed on 18.1.1944, which was registered on 17-2-1944. The suit was brought on 17-1-1945. It appears that the property had been further sold by deft. 1 to defts. 3 to 17 & they were also impleaded as defts. There was a preliminary issue framed in the suit as to whether the suit was barred by time against any of the defts. This was decided in favour of the pltfs. on 4-12-1945. Thereafter four further issues were framed:

Whether the custom of pre-emption prevails in the locality in which the properly in suit is situated ?

If so, whether the pltf. has a superior right of preemption to that of deft. 1 & also to that of defts. 3 to 17?

What improvements, if any, has deft. 1 effected & what further improvements, if any, have defts. 5 to 8 effected & at what costs & whether they are entitled to the compensation for the same ?

What expenses of conveyance etc., have the contesting defts. incurred & whether they are entitled to be reimbursed for the same ?

To what relief is the pltf. entitled & against whom?

The learned trial Judge found on the first issue that the custom of pre-emption did not prevail in the locality known as Kothi Shora, where the property was situate. The second issue was decided in favour of the pltfs. On the third issue the learned trial Judge''s conclusion was that there had been some construction made but he was not satisfied on the evidence brought on the record as to what was the cost of the construction. On the fourth issue the learned trial Judge''s conclusion was that the cost of conveyance, etc, came to Rs. 70. The learned trial Judge dismissed the suit because of his finding on the first issue. The pltfs. put in an appeal to the High Court of Judicature at Lahore & this appeal is now before us for disposal.

We have heard Mr. Shamair Chand on behalf of the Appellants. All the Respondents are Mohammedans & the Custodian was served on their behalf but there has been no appearance on behalf of the Custodian. The case was hoard ex parte against the Respondents.

In order to prove the first issue, which is the real issue in the case, the pltfs. examined nine witnesses. (After discussion of the evidence the judgment proceeds:)

From the plaint & from the evidence that has been led in this case, it seems to me clear that the area in which the property in dispute is Situate is a part of Subzi Mandi. Subzi Mandi is a well known locality & has been growing. There is not the slightest doubt that the six documents produced in this case show that in different parts of Subzi Mandi custom of pre-emption has been prevailing. There is at least one instance given in the present case regarding the part of the area which the draftsman would want to have excluded in which a suit had been brought & the trial Court had decreed it holding that the custom of pre-emption prevailed. I am referring to the evidence of Darogha Hasib-ud-Din (P.W.8) in which he stated that he was successful in a preemption suit regarding a piece of land near the Birla Mills in Subzi Mandi. Mr. Shamair Chand, learned Counsel for the Appellants, stated that as the custom prevailed in Delhi, it must be recognized as prevailing in all the suburbs of Delhi. He referred to a number of cases, but in the cases which he referred to the question that was being agitated in the Courts was regarding the custom of pre-emption in the precincts of the city of Delhi and not in any of the suburbs of Delhi. As a matter of fact in one of the cases Imperial Oil Soap and General Mills Co. v. M. Misbah-ud-Din, 2 Lah. 83 it was held that the custom of pre-emption did not prevail in Pahar Ganj, which was a suburb of Delhi. Judgments in those cases therefore are of no avail, nor decide the present case. But what is of. importance is to remember that the custom of pre-emption has been found to prevail in six cases in the area of Subzi Mandi. If a town or a sub-division expands, the custom was held to prevail in the extended town or the sub-division. In Miran Bakhsh v. Mohammad Akram Khan AIR 1937 Lah. 167 which was a judgment of a Single Judge, it was held that where the custom of pre-emption prevailed in a particular town & the same town expands in the ordinary course of things, the custom of preemption would also be enforceable in the extended boundaries of the original town where the custom had prevailed. The learned Judge in that case stated:

We know that many towns are extending their boundaries from various causes and it does not stand to reason that simply because those towns have expanded, the right of pre-emption would not be available to people living in the outer fringe of the enlarged town & must be confined to the older & narrower limits which at one time indicated the particular geographical unit.

In Allah Din v. Shankar Shah, AIR 1924 Lah. 335 the learned Judges said:

If there is one thing which is clearly established in pre-emption law it is that if in a definite Mohalla or sub-division of a town the custom of pre-emption exists, it must be treated as existing throughout the whole of the sub-division.

In my opinion, the evidence that has been led in this case proves that Kothi Shora is really an extension of Subzi Mandi & as I have no doubt that the custom of pre-emption prevails in Subzi Mandi, I must hold that the custom of pre-emption prevails in Kothi Shora, which is nothing but an extended part of Subzi Mandi. I would, therefore, hold that the pltfs. have succeeded in proving that they have a right of pre-emption.

There is no evidence led in the case regarding the cost of the new constructions. It is, therefore, not possible to find out what their value is. It is in evidence that expenses incurred on the deed of conveyance, etc. will be Rs. 70. The purchase price was not contested in this case.

I would accordingly accept the appeal & pass a decree for possession of the property in suit by pre-emption in favour of the pltfs. against the defts. on payment of a sum of Rs. 70,070. This sum of Rs. 70,070 will be deposited in Court on or before 11-6-1951, failing which the appeal will stand dismissed with costs. The pltfs.-Appellants will be entitled to get their costs in this Court as well as in the Court below.

Harnam Singh J.

I agree.