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PETITIONER: A RAZZAQUE SAJANSAHEB BAGWAN AND ORS.

       Vs.

RESPONDENT: IBRAHIM HAJI MOHAMMED HUSAIN

DATE OF JUDGMENT:       14/10/1998

BENCH: G.T.NANAVATI, S.P.KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:  JUDGMENT NANAVATI. J. The  plaintiff-respondent  claiming   a   right   of pre-emption   on  the  ground  of  being  ’Shafi-i-jar’  and ’Shafi-i-sharik’ filed a suit in the Court of  Civil  judge, Senior Division.  Sholapur being Special Civil Suit No.  376 of  1990 and prayed for a decree of pre-emption and also for a direction to the appellants to sell the suit property  for the  price  mentioned  in  the  sale  deed executed by their sisters in his favour.  The trial Court on  appreciation  of the evidence lad by the parties held that the respondent was no  longer  a co-sharer, as in the suit filed by the sisters for partition a decree was passed in their favour and in the execution proceedings, Suit House No.  85 went  to  the  two sisters  and  the  appellant  became  the owner of House No. 84-B.  The Trial Court, therefore, held that the  appellants did not fall into class I of the persons who are entitled to claim pre-emption under the Mohammedan Law.  It further held that  the  appellants  who  were defendants in the suit have also their  property  adjoining  to  House  No.    85   and, therefore,  they  are  also  entitled  to claim the right of pre-emption.  As the respondent and the appellants belong to the same class both are entitled to half share in  the  suit property.  Accordingly,  it  partly  decreed  the suit.  The respondent was directed to deposit  Rs.    92,500/-  in  the Court  and  the  appellants  were directed to execute a sale deed for half the suit property. Feeling aggrieved by the judgment and  decree passed by the Trial Court the appellants preferred an appeal to the High Court. No appeal or cross objections were filed by  the respondent.  The  High  Court  dismissed  the  appeal on the ground that it was without  any  substance.  The  appellants have  therefore,  filed this appeal challenging the judgment and order passed by the High court. The contention of the learned counsel for the appellants  is that  the only ground on which the plaintiff’s suit has been decreed is that he being a  ’shafi-i-jar’  was  entitled  to claim the  right  of  pre-emption.    He submitted that this Court in Bhau Ram V.  B.  Baijnath Singh.  1962 Suppl.   (3) SCR 724 and  in  Sant  Ram and Ors.  V.  Labh Singh and Ors.

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964 (7) SCR 756 has held that law of  pre-emption  based  on Vicinage is  void.    Unfortunately,  attention  of the High Court was not drawn to these two  decisions  of  this  Court and, therefore, the High Court did not consider this aspect. As   the   very   basis   of  claim  has  been  held  to  be unconstitutional by  this  Court,  the  suit  filed  by  the plaintiff ought to have been dismissed.  We, therefore allow this  appeal, set aside the judgment and order passed by the High Court and dismiss the suit filed by the respondent.  It will be open  to  the  respondent  to  withdraw  the  amount deposited by  him  in  the  Trial  Court.  There shall be no order as to costs.