Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Second Appeal No. 1373 of 2001 (Old No. 1553 of 1987) Rashid Ahmad S/o Raddu R/o Mohalla Kassaban, Pargana Jwalapur, Tehsil Roorkee, District Saharanpur. …………………..Appellant. Versus (1) Nazar Mohammad S/o Raddu (2) Nasiruddin S/o Alla Rakkha (3) Khalid Aktar S/o Hafiz Nazar Mohammad R/o Mohalla Kassaban, Pargana Jwalapur, Tehsil Roorkee, District Saharanpur. ………..……..Respondents. Sri Parikshit Saini, Advocate for the Appellant. Sri Lok Pal Singh and Sri Sayeed Nadim Khurshid, Advocates, for the Respondents. Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 100 of Civil Procedure Code, 1908, is directed against the judgment and decree dated 14.04.1987, passed by Civil Judge, Roorkee, in Civil Appeal No. 67 of 1982, whereby said appeal was allowed and judgment and decree dated 29.05.1982, passed by the trial court (Munsif, Haridwar) in Suit No. 61 of 1979 is set aside, and the suit filed by the plaintiff for decree of pre-emption, is dismissed. (2) Heard learned counsel for the parties. 2 (3) Brief facts of the case giving rise to this appeal are that plaintiff Rashid Ahmad instituted the suit for decree of pre-emption in respect of the property in question with the pleading that all the parties to the suit are Muslims of Sunni sect and bound by Hanafi law. They are residents of Jwalapur. There is custom of pre-emption in Jwalapur. Plaintiff and defendant no. 1 are real brothers and they had equal half shares in the property in suit, which they purchased through a sale deed executed on 6th March 1964 by one Ghasita. When defendant no. 1 started talking relating to sale of his share in the property to defendants / respondents no. 2 and 3, the plaintiff made a demand of his right of pre-emption. He served a notice on defendant no. 1 in this connection. However, defendant no. 1 vide sale deed dated 19th June 1979 sold his share in the property to defendants / respondents no. 2 and 3 for a consideration of Rs.3000/. The sale deed was registered on 20th June 1979. As soon as plaintiff / appellant came to know of the sale deed, he thrice jumped and orally claimed his right of pre-emption in the presence of the witnesses, but the defendants ignored the same. Hence, the suit. (4) Defendants / respondents contested the suit and filed their written statements in which it is denied that there is any custom of pre-emption in Jwalapur. Another plea on which the defendants contested the suit is that property in question had already been partitioned between the plaintiff and defendant no. 1 before the sale deed in question was executed and as such otherwise also the plaintiff had no right of pre-emption in respect of the share already partitioned. It is also denied that plaintiff ever claimed right of pre-emption, as alleged by him. 3 (5) On the basis of the pleadings of the parties following issues were framed by the trial court:- (i) Whether the plaintiff is a shareholder in the property in suit? (ii) Whether there is custom of right of pre-emption in Jwalapur and, if so, is the plaintiff entitled to that right? (iii) Whether the plaintiff had demanded the right of pre- emption, as pleaded by him in paras 6 and 7? (iv) Whether the plaintiff had knowledge of agreement of sale between the defendants and had the plaintiff consented for execution of sale deed in question? (v) To what relief, if any, the plaintiff is entitled? (6) After recording evidence and hearing the parties, the trial court found that there had not been any partition between the plaintiff and defendant no. 1 of their shares in the property in suit. It further found that the plaintiff had demanded right of pre-emption before and after the execution of the sale deed by defendant no. 1 in favour of defendants no. 2 and 3 and decreed the suit as prayed by the plaintiff. Aggrieved by said judgment and order dated 29.05.1982, passed by the Munsif, Haridwar, (trial court) in Suit No. 61 of 1979, the defendants preferred Civil Appeal No. 67 of 1982, before 4 the first appellate court. The Civil Judge, Roorkee, after hearing the parties allowed the appeal of the defendants vide impugned judgment and decree dated 14.04.1987. The said first appellate court set aside the judgment and decree passed by the trial court and dismissed the suit. Hence this appeal was filed by the plaintiff before Allahabad High Court on 20.05.1987, where it was admitted on following substantial question of law:- Whether the demand of pre-emption made by the plaintiff at 10 a.m. on June 20, 1979, remained valid under the Muslim Law, thereafter till the proceedings of registration, including preparation of copy of the sale deed in the registers of the Registration Office, continued during the day? (7) Answer to Substantial Question Of Law:- Admittedly, plaintiff / appellant and defendant / respondent no. 1 are real brothers. It is also not disputed that the property in question was purchased by the two through a registered sale deed dated 6th March 1964 executed by one Ghasita. It is also admitted between the parties that defendant no. 1 has executed registered sale deed of the property in suit in favour of the defendants no. 2 and 3. The dispute between the parties is as to whether the property had already been partitioned between the plaintiff and defendant no. 1, before execution of sale deed on 19.06.1979 and was there any custom prevalent in the area as to right of pre-emption or 5 not, if so has the plaintiff successfully made demand of pre-emption? (8) Briefly stated, relevant principle by Muslim Law on the point is that Mohammedan Law of Pre-emption or Shufaa applies to the vendor and the Pre-emptor who are Mohammedans, but subject to any custom or contract or any law for the time being in force. Also, the right of pre-emption arises on transfer of property either by way of sale or exchange. The following formalities must be made by way of demands (talabs) by the pre-emptor:- (i) First demand or demand by jumping up (talab-i- mowasibat)- The pre- emptor must assert his claim immediately on hearing of the sale. (ii) Second or Confirmatory demand (talab-i-ishhad). (iii) Demand of possession (talab-i-tamleek). (9) It is settled principle of law that a finding of fact recorded by the first appellate court which is based on the evidence on record, cannot be interfered by the High Court in second appeal. There is categorical finding given by the first appellate court after discussing the entire evidence on record that the plaintiff has failed to prove the custom of pre-emption in Jwalapur pleaded by him in the plaint. Neither said finding is perverse nor is it against the evidence on record. That being so, where the plaintiff has failed to prove a custom pleaded by him it cannot be said that he has made out a case for decree of 6 pre-emption in his favour. In Mohammad Baqar and others Vs. Naim-un-Nisa Bibi and others, AIR 1956 Supreme Court, page 548, the apex court has held that the burden of proving a custom in derogation of a general law heavily lies on the party who sets it up. (10) In Shri Audh Behari Singh Vs. Gajadhar Jaipuria and others, AIR 1954 Supreme Court, page 417, it has been held by the apex court that during the period of the Mughal emperors, the law of pre-emption was administered as a rule of common law of the land in those parts of the country which came under the domination of the Muhammadan rulers, and it was applied alike to Muhammadans and Zimmees i.e. Christians and Hindus. It is further held by the apex court that law of pre-emption was introduced in this country by Muhammadans and there was no indication of any right prior to Mughals came to India. It has been further observed by the apex court that “since the establishment of British rule in India, the Muhammadan Law ceased to be the general law of the land and as pre- emption is not one of the matters respecting which Muhammadan Law is expressly declared to be the rule of decision where the parties to a suit are Muhammadans, the Courts in British India administered the Muhammadan Law of pre-emption as between Muhammadans entirely on the grounds of justice, equity and good conscience. Here again there was no uniformity of views expressed by the different High Courts in India and the High Court of Madras definitely held that the law of pre-emption, by reason of its placing restrictions upon the liberty of transfer of property could not be regarded to be in consonance with the principles of justice, equity and good conscience. Hence the right of pre-emption is 7 not recognised in the Madras Presidency at all even amongst Muhammadans except on the footing of a custom.” (11) The lower appellate court after discussing the evidence has not only held that the plaintiff failed to prove the custom pleaded by him but also found that the property had already been partitioned between the plaintiff and defendant no. 1 and there was a wall separating the property in question sold by the defendant no. 1. This Court agrees with the observation of the first appellate court that the first demand (talab-i-mowasibat) should have been made only after completion of sale as held by the apex court in Ram Saran Lall and others Vs. Mst. Domini Kuer and others AIR 1961 Supreme Court, 1747. In said case it has further been held that sale is complete when the document to be registered is copied out in records of Registration Office as required under the Registration Act. The finding of the lower appellate court is that talab-i-mowasibat by jumping thrice was made by the plaintiff on 20.06.1979 at 10 a.m. while the registration work went on till evening of that day i.e. 20th June 1979. Accordingly, the substantial question of law stands answered in favour of the defendants / respondents. (12) For the reasons, as discussed above, this appeal is liable to be dismissed. The same is dismissed. However, no order as to costs. (Prafulla C. Pant, J.) 12.11.2008 NS 8