1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 277/2002 (Shaikh Abdul Shabbir Abdul Majid & others VERSUS Quresha Begum Shaikh Babboo & another) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Shri A.R. Patil, counsel for the appellant. CORAM : SMT. VASANTI A. NAIK, J. DATE : JUNE 20, 2008. Heard the learned counsel for the appellant. The appellant is the original plaintiff. A suit was filed by the plaintiff for seeking a declaration that she was entitled to purchase the property which fell to the share of Suleman Mohamed and which was sold by the defendant no.2, the widow of Suleman Mohamed, to defendant no.1, by a sale-deed dated 31.03.1982, by exercising the right of preemption or Shufaa under the Muslim Law. A plot admeasuring about 1400 Sq.Ft. was the joint property of Sheikh Mohamed and Suleman Mohamed. Both the brothers partitioned the property and each became the owner of 700 Sq.Ft. of the plot. It was on 2 31.03.1982, that the widow of Suleman Mohamed sold the plot, which fell to the share of her deceased husband and which she received in Mehar, to defendant no.1. The plaintiff, the widow of Sheikh Mohamed, instituted a suit in the year 1987 for a declaration that she was entitled to exercise her right of Shufaa or pre- emption and the defendant no.2 could not have sold the property to the defendant no.1. She further sought a declaration for exercising her right of preemption. The defendants filed their written statement and resisted the claim of the plaintiff. It was denied by the defendants that the plaintiff could have exercised the right of Shufaa. It was pleaded by the defendant no.2 that before the sale of the property, she was in dire need of money for the funeral of her deceased husband and though she offered the plaintiff to purchase the same, the plaintiff could not purchase the property for want of money. According to the defendants, the alleged right of Shufaa as claimed in the plaint was an afterthought. On the aforesaid pleadings of the parties, the trial Court framed the necessary issues and held that the plaintiff was estopped from exercising the right of preemption by her 3 own conduct as the property was sold in the year 1982 and the suit was instituted by her after a lapse of five years in the year 1987. The trial Court further held that the plaintiff was also not entitled to exercise the right of preemption as she had declined to purchase the suit property when offered. The findings recorded by the trial Court were confirmed by the first appellate Court in an appeal filed by the plaintiff. It was submitted on behalf of the appellant by the learned counsel that the Courts were not justified in holding that the right of pre-emption cannot be exercised by the plaintiff in view of her own conduct. I have perused both the judgments. The Courts had recorded a categorical finding that the plaintiff was not entitled to exercise a right of pre-emption in view of her conduct and also because the suit was barred by limitation as the property was sold in 1982 and the suit was instituted in the year 1987. Apart from the fact that the finding is a pure finding of fact based on a proper appreciation of material evidence on record, it is necessary to consider that the claim of the plaintiff for exercising a right of pre-emption was also not legally tenable. A right of preemption, as stipulated in Sections 226 and 231 of the 4 Mulla's Principles of Mohammedan Law and also under Section 4 of the Partition Act could be exercised only in cases where the properties are undivided. The right of preemption could be exercised to prevent the introduction of a stranger into a residential house and also with a view to bring the property under the ownership of one person eventually. This is not the case here. In the instant case, neither were the plaintiff and the defendant co-sharers nor did the plaintiff claim that they were the owners of dominant and servient tenements. It was not the case of the plaintiff that the right of pre-emption was created by a contract between Sheikh Mohamed and Suleman Mohamed. The plot belonging to Sheikh Mohamed and Suleman Mohamed was admittedly partitioned and the widow of Suleman Mohamed had sold the separate plot which fell to the share of her husband, to defendant no.1. Since the property was already divided, the plaintiff could not have exercised the right of preemption for purchasing the property sold by the defendant no.2 in the year 1982. Thus, there was no legal basis for claiming a right of pre-emption and the suit of the plaintiff was liable to be dismissed. 5 Since no substantial question of law arises for consideration in this second appeal, the same is dismissed with no order as to costs. JUDGE APTE