1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.488 OF 2009 Bibhishan s/o Manohar Rankhamb, Age: 55 years, Occ: Agri. R/o. Kumalwadi, Tq.Osmanabad. District Osmanabad. .. Appellant Versus 1. Shivaji s/o Dhondiba Shinde, Age: 71 years, Occ: Agri. R/o. Kumalwadi, Tq. Osmanabad. District Osmanabad. 2. Gangabai w/o Sureshrao Jagtap, Age: 39 years, Occ: Household., R/o. Wangi No.1, Tq. Karmala, District Solapur. .. Respondents ... Mr. S.Y. Mahajan, Advocate for appellant. ... CORAM : V.R. KINGAONKAR, J. DATE : 27TH NOVEMBER, 2009. PER COURT : . Heard Counsel for the appellant. 2. The appellant is the original plaintiff who had filed suit to enforce the right of preemption. His suit (R.C.S. No.165/2004) was 2 decreed by the trial Court. There is no dispute about the fact that original defendant NO. 2 is cousin of the plaintiff (appellant). Their lands are in the proximity of each other. Defendant No. 2 alienated the suit land in favour of defendant No. 1. Admittedly, she owned the suit land which had fallen to the share of her father. 3. The plaintiff's case was based on alleged right of preemption due to contagious nature of land owned by him and on strength of customary right. The First Appellate Court reversed the decree while allowing R.C.A. No. 5/2006. The First Appellate Court held that the plaintiff failed to establish such customary right of preemption and moreover, the right of preemption available to the members of Muslim community in the area of Marathwada, which was previously a part of erstwhile Hyderabad State, is not available to the plaintiff (appellant). 3 4. Mr. S.Y. Mahajan, learned Counsel for the appellant would submit that the right of preemption arises out of prevailing custom and that it could be exercised because the plaintiff had preferential right to purchase the suit land. The learned Counsel would submit that the sale deed dated 01-07-2003 executed by defendant No. 2 in favour of defendant No. 1 is liable to be set aside and both the defendants ought to have been directed to execute sale deed in favour of the plaintiff (appellant). 5. Significantly, the plaintiff (appellant) did not adduce necessary evidence to prove that there is a established custom in the area to allow right of preemption. It is well settled that in order to acquire status of tenet of law, custom prevailing in the area or amongst members of particular community ought to have been observed for large number of years. Thus, by repeated use of such customary rights, it can be said that custom has been derivated to the 4 status of law itself. The plaintiff failed to adduce evidence to show repeated instances of following such custom by the others in the area. No other witnesses were examined who had followed such custom for a considerable period of more than 20 years. The right of preemption, once available to the members of Muslim community in the erstwhile Hyderabad State cannot be regarded as a source of law. It is well settled that preemption is against the members of liberty and is violative of constitutional provisions. It is authentic to Article 19 and 21 of the Constitution. Considering the settled legal position, I do not find any substantial question of law is involved in the present Second Appeal and therefore, the Second Appeal is dismissed. [ V.R. KINGAONKAR, J.] sut/NOV09/sa488.09