Case: Munni Lal Vs. Bishwanath Prasad &amp; Ors

The respondent brought a suit for pre-emption of the land in dispute, which was sold under a sale deed dated February 6, 1942. The case of the respondent was that he was owner of a house and land to the south of the property sold. He based his claim to pre-emption as a shafi-i-jar (i. e. pre-emptor by right of vicinage) and also as a shafi-i-khalit (i. e. pre-emptor by right of appendages). His case was that there was such a custom of pre-emption prevailing in the whole of the city of Benaras and therefore he was entitled to pre-empt the property sold which was a khandar (i. e. a house in ruins). The plaint made the usual allegation that the necessary talabs had been performed and the respondent was entitled to pre-empt the sale.      2. The suit, was resisted by the vendee, whose legal representative is the appellant before this Court. The vendee denied that there was any custom of pre-emption in the city of Benaras, and particularly, in the mohalla in which the property in dispute was situate. It was further alleged that even if the existence of custom of pre-emption was proved, it could not be applied to parjoti land (i. e. lease-hold land). It was also denied that the respondent was either shafi-i-jar or shafi-i-khalit. It was further pleaded that as the vendors and the vendee lived in Calcutta, they were not governed by the custom of pre-emption, if any, prevalent in the city of Benaras. The performance of talabs was also disputed. The trial court framed four issues, namely (i) whether the respondent had a right to sue, (ii) whether the custom of pre-emption prevailed in Mohalla Baradeo, in the city of Benaras, (iii) whether the vendors and the vendee, as residents of Calcutta, were governed by the custom of pre-emption, and (iv) whether the talabs had been performed.      3. The trial court held that the necessary talabs had been performed. It also held that the respondent was the owner of the contiguous house and had therefore the right to sue. On the question of custom the trial court held that there was a custom of pre-emption in the locality, which was co extensive with Mahomedan Law of pre-emption. Finally, the trial court held that the vendors and the vendee were not governed by the custom as they did not live in Benaras. In this view of the matter, the suit was dismissed with costs.      4. The respondent then went in appeal and his contention, in one of the grounds of appeal, was that as the custom of preemption was held by the trial court to have been proved (and it was co-extensive with Mahomedan Law), the custom would bind Hindus also. It was further contended that the fact that the vendors and the vendees did not live in Benaras made no difference and they would be bound by the custom prevailing in the locality in which the property was situate. Two main questions thus arose before the first appellate court, namely-(i) whether the custom as proved bound Hindus also, and (ii) whether the fact that the vendors and the vendee did not live in Benaras exempted them from being governed by the custom. On the question of custom, the first appellate court observed that the custom in question had been proved to exist in the locality and was co-extensive with Mahomedan Law of Pre-emption and that this finding had not been challenged before it. On the second question, the first appellate court held that the fact that the vendors and the vendee did not reside in Benaras made no difference to the application of the custom to them with respect to the property transferred.      5. The question whether Parjoti lands could be subjected to pre-emption was not decided by the trial court, for it dismissed the suit on the ground that the vendors and the vendee not being residents in Benaras, were not bound by the custom. The first appellate court having found that the vendors and the vendee were so bound went into the question whether lease-hold property could be pre-empted. It held that the property was heritable and transferable and though the vendors were lessees and paid some ground-rent they were for all intents and purposes owners and therefore the land was pre-emption. It therefore allowed the appeal and granted a decree for pre-emption.      6. Then followed a second appeal to the High Court by the vendee and two main questions were raised there, namely-(i) that the custom of pre-emption could not prevail against the vendors and the vendee as they were not residents of Benaras and (ii) that in any case it did not extend to lease-hold land or parjoti land. The High Court held that the custom would bind the vendors and the vendee in this case even though they were not residents of Benaras. On the question whether the custom prevalent applied to parjoti land or not, the High Court seems to have read the judgment of the two lower courts as holding that the customs of pre-emption even the case of transfer of parjoti land had been proved. The High Court therefore dismissed the appeal. The vendees heir then obtained special leave from this Court, and that is how the matter has come before us.

Reasoning: It is thus clear that all that was found by the two lower courts was that there was a custom of pre-emption prevailing in the city of Benaras which was co-extensive with Mahomedan Law and which bound Hindus also whether they were residents there or not, so long as the property to be pre-empted was in the city of Benaras8. It is true that the first appellate court held that the custom applied to leasehold land also because it was of opinion that the holder of parjoti land was for all intents and purposes the owner. But that does not mean that the two courts had found that the custom as such related to parjoti land. The custom that was prevailing was co-extensive with Mahomedan Law, whether it applied to parjoti land or not would depend upon the provisions of Mahomedan Law. The first appellate court which was apparently not unaware of the provisions of Mahomedan Law with respect to pre-emption seems to have held that though there vas some ground-rent payable, the holder of parjoti land was for all intents and purposes the owner. The High Court was therefore not right in saying that it had been found by the two courts below that the custom of pre-emption prevailing in the city of Benaras applied even to transfer of parjoti land. All that the two courts had found was that the custom prevailing in the city of Benaras was co-extensive with Mahomedan LawIn this view of the matter, as the custom which was found proved was co-extensive with Mahomedan Law, there can be no pre-emption of the land which had been sold by the impugned sale-deed because the land was parjoti land i. e. leasehold. We may in this connection refer to Oudh Behari Singh v. Gajadhar Jaipuriya, AIR 1955 All 698  . That was also a case of pre-emption relating to this very mohalla in the city of Benaras, and the land pre-empted was parjoti land i e. leasehold. It was held by the Allahabad High Court that the sale of parjoti land corresponding to lessees right could not be a subject of pre-emption. The learned Judges pointed out in that case that no case had been brought to their notice in which lessees rights were held pre-emption under Mahomedan Law. As the property sold was leasehold land it was not open to the respondent to pre-empt it under a custom which was co-extensive with Mahomedan Law whatever might be the ground on which pre-emption was claimed.