L.A. Puech v. Aziz Fatima Bibi

Tudball, J.:— This is a plaintiff's appeal arising out of a suit for pre-emption. The property sought to be pre-empted is in an area of land situated in mahal Katihat in the town of Meerut.

2. This mahal consists of plots of land on which are built houses. The vendor in the present case was the owner of a compound with a house standing in it together with the out-houses stables et cetera. The plaintiff is a co-sharer in the mahal and he based his right on a custom which gave him a prior right of purchase as compared to a stranger. In his plaint where he gives the details of the property which seeks to pre-empt he states that the custom of pre-emption only relates to land and not to the houses standing upon it. He therefore sought to pre-empt an area of 18 Bighas and 17 Biswas, bub excluded from his suit the area of 2 Bighas and 18 Biswas on which the house actually stood. Exception was taken by the defendant to the omission by the plaintiff to pre-empt the whole of the property. It was pleaded that the plaintiff was bound to pre-empt not only the area which he sought to obtain but also the building and the land on which the building stood, and that as he had not done this his suit was bound to fail. Some 13 issues were framed by the court below. Issues 1, 6 and 7 related to the alleged custom which is denied by the opposite party and Issue No. 8 was to the following effect:—“Is the suit had for omission to sue for pre-emption of the kothi and the land relating to it, and has the answering defendant now become a confirmed co-sharer in the mahal in question on account of the said kothi and land not being claimed by the plaintiff in this suit?” The lower court decided the first, sixth and seventh issues and held that no custom prevailed and dismissed the suit. It did not decide the 8th issue, althongh the decision of that issue did not depend upon any evidence in the case bub on the admitted facts and the plaint itself. The plaintiff has appealed and the question of the custom has been discussed at some length, bub we find it quite unnecessary to decide that issue for the simple reason that the suit is bound to fail on the 8th issue. On the face of his plaint the plaintiff is seeking partial pre-emption. Assuming the existence of a custom which gave him a right, be was bound to preempt the whole of the land, including the area on which the house stood. This be has not done and it is quite clear from his plaint and the details of the property set out therein which he seeks to pre-empt. Partial pre-emption is forbidden by law. As a matter of fact, in respect to the land omitted from the suit the defendant vendee is now the full owner and therefore a co-sharer in the mabal and stands on an equal footing with the plaintiff therein. This alone is sufficient to defeat the plaintiff's claim.

3. The appeal must therefore fail and is dismissed with costs.

4. Appeal dismissed.