Patna High Court
Nathuni Ram vs Gopinath And Anr. on 16 January, 1962
Equivalent citations: AIR1962PAT226, AIR 1962 PATNA 226, ILR 41 PAT 144 1962 BLJR 253, 1962 BLJR 253
Author: V. Ramaswami
Bench: V. Ramaswami
JUDGMENT Choudhary, j. 1. This is an appeal by the plaintiff whose suit for pre-emption has been dismissed. There is a house standing on a lease hold land, bearing Holding No. 118, Circle No. 45, Wird No. 14, within the Patna Municipal Corporation. If originally belonged to the plaintiff and the husband of defendant No. 2. There was a Partition of the house between the two owners as a result of which the eastern half portion of the house fall to the share of the plaintiff and the westem-half portion to the share of the husband of defendant No. 2, and this western-half portion ultimately came to be owned by defendant no. 2. On the 8th of December, 1951, she sold this western-half portion of the house to defendant No. 1. The case of the plaintiff is that he came in know of the sale on the 31st of January, 1952, and, soon there, he performed the two requisite ceremonies for claiming the right of pre-emption. He accordingly, filed the suit, out of which this appeal arises, for pre-emption. 2. The suit was contested by defendant No. 1, and the defence taken by him was that the re-quisite ceremonies had not been performed, that the sale of the house had been effected with the full knowledge of the plaintiff, and that, the 1and on which the house stood being a lease-hold property there could not be any right of pre-emption. 3. The trial court held that the requisite ceremonies were not only perfomed, and that the sale had been effected with the knowledge of the plaintiff. The learned Munsif, however, found that the plaintiff could be entitled to claim the right of pre-emption on the ground of vicinage it he had performed the ceremonies. Since, however, on the finding the ceremonies had not been performed, the suit was dismissed. On appeal, the learned Subordinate Judge reversed the findings of the trial court on the list two points and held that both the requisite ceremonies were duly and legally performed and that the plaintiff had no knowledge of the sale and, as such, the suit was not barred by waiver and estopped. He, however, held that, as the land over which the house stood was a lease-hold property, there could not be any right of pre-emption with respect to the same. The appeal was, accordingly, dismissed and the order of dismissal passed by the trial court was affirmed. 4. The plaintiff, therefore, has preferred this second appeal. When it came up before a Division Bench of this Court for hearing, one ot the points raised, which led this case to be heard by a Full Bench, was whether the right of preemption was hit by the guarantee conferred under Article 19 (1) (f) of the Constitution of India and whether such a right of pre-emption is, therefore, unconstitutional. Before this case could be heard by this Full Bench, a similar question arose in another Full Bench case, in Sheo Kumar Dubey v. Smt. Sudama Devi (Second Appeal No. 852 of 1956, D/- 13-11-1961 : (AIR 1962 Pat 125) (FB). It was held in that case that the right of preemption was not hit by any Article of the Constitution and it was constitutionally valid. The above question, therefore, is now no langer in controversy in this case, and, following the decision in the Full Bench case, referred to above. It must be held that the right of pre-emption is not unconstitutional. 5. It is an undisputed position in law that there is no right of pre-emption with respect to a raiyati or lease-hold land. This principle of law is too well established, and, if any authority is needed, reference may be made to the cases of Mahomed Jamil v. Khub Lal Raut, AIR 1921 Pat 164 and Phul Mohamed Khan v. Qazi Kutubuddin, AIR 1937 Pat 578. In both these cases, it was held that there could be no right of preemption with regard to mokarrari or raiyati interest. The same view has been reiterated in a recent decision of this Court, in Rameshwar Lal v. Ramdeo Jha, AIR 1957 Pat 695, wherein it has been held that the right of pre-emption cannot be claimed on the ground of vicinage in respect of raiyati land. Mr. Lalnarayan Sinha, appearing for the appellant, has, therefore, conceded that the plaintiff could have no right of pre-emption in respect of the land over which the house stood, and he has pressed his appeal only with respect to the house standing on the lease-hold land. He has put forward an argument that, though the plaintitf could have no right of pre-emption in respect of the land over which the house stood, he had a legal right to claim pre-emption with respect to the house only which stood on that land. In support of this argument, he has relied on the decisions in Zahur v. Nur Ali, ILR 2 All 99 and AIR 1921 Pat 164, referred to above. In the Allahabad case it appears that a dwelling-house was sold which stood on a land over Which the seller bad no right. The plaintiff claimed to enforce his right of pre-emption in respect of that dwelling-house basing his claim on vicinage. In the High Court, it was contended by the defendant that the sale of the house without the site did not give the plaintiff a right of pre-emption. This contention was not accepted by the High Court which held that the seller not only sold the materials of the house, but such interest as he possessed as an occupier of the soil and that the house was sold as a house to be inhabited on the spot with the same right of occupation as the seller had enjoyed. The text cited before their Lordship was held not to be applicable to the case of a house meant for inhabitation. In the other case, AIR 1921 pat 164, a residential house, with certain mokarrari land over which it stood, was sold by defendants 2 and 3 to defendant No. 1, and the plaintiffs claimed preemption in respect of these properties on account of having an ancestral house, and land contiguous to the properties in question. The suit was contested on the ground that the right of pre-emption did not extend to mokarrari land and to the house which stood on it. This contention was accepted by the learned District Judge in appeal and the suit of the plaintiffs was, accordingly, dismissed. In second appeal before the High Court, it was held that the right of pre-emption did not exist with respect to the mokarrari interest, but an argument was advanced on behalf of the plaintiffs that they were, at any rate, entitled to pre-empt the home. The High Court, relying on the decision in ILR 2 All 99. held that, if the house was for occupation pre-emption could be claimed on the ground of vicinage by the owner of the adjoining house; but, if it was sold apart from the land on which it stood with a view to being pulled down, no right of pre-emption could be claimed with respect to it. Reliance Was also placed on Baillie, page 473, in support of the above decision. 6. Mr. Mitter, appearing for the defendant-respondent has contended that the right of pre-emption could not be claimed in respect of the house apart from the land on which it stands. His submission is that, in order to claim the right of pre-emption in respect of the house, the pre-emptor must also be entitled to claim such a right with respect to the land over which it stands. In other words, the argument put forward is that, if the plaintiff could not be entitled to claim a right of pre-emption with respect to the land, he could not claim such a right even with respect to the house which stands on that land The argument seems to me to be well-founded and must be accepted as correct. In the present case, the plaintiff could not claim a right of pre-emption in respect of the land over which the house stands at it is a lease-hold land. It his claim for pre-emption with respect to the house prevails, the result will be that be will practically have the land over which the house stands without having a light of pre-emption with respect to the land. It is in my opinion, inconceivable that a house which "is sold for inhabitation or occupation can pass on to a pre-emptor without the land on which it stands. After the passing of the house to the pre-emptor, the land will be left to the vendee without, perhaps, being of any utility to him, and an occasion may be created in such a case to compel the vendee to give to the pre- emptor the land also, Such a situation in law was not contemplated, in my opinion, under the rules of the Mahomedan Law. 7. In Bishan Singh v. Khazan Singh, AIR 1958 SC 838 it has been pointed out that the right of pre-emption is a light of substitution but not of re-purchase, that is, the pro-emptor takes the entire bargain and stops into the shoes of the original vendee, and that it is a right to acquire the whole of the property sold and not a share of the property sold. Wilson, in his Digest on Anglo-Mohamadan Law, has stated in paragraph 370, at page 410, Fourth Edition the law with respect to the right of pre-emption over a house as under:- "If a house is sold apart from the ground on which it stands with a view to being pulled down, so that it is in fact a sale of the materials no right of pre-emption arises wilh respect to it. If it is sold for occupation as a house, then preemption can be claimed on the ground of vicinage by the owner of any adjoining land." It is, however, not clear from this passage as to whether the sale of the house for occupation included also the sale of the land over which it stood. Baillie, in his Digest of (sic) Mohummudan Law, at page 475, has expressed the law on the subject to be as follows:- "When a person has purchased a palm-tree be cut it down, or when he has purchased it absolutely, there is no right of pre-emption in it. But if it be purchased with its roots and the ground on which it stands, it is liable to the right. The rule is the same with regard to building purchased for removal, and the same buildings purchased with their foundations: and there is no pre-emption in the former case, while there is in the latter.'' The above passage makes it perfectly clear that, if the house is purchased with its foundations there is a right of pre-emption. In order, therefore, that a house may be purchased with its foundations, the pre-emptor shall have to acquire the land over which the foundations stand. If the land is not acquired, it is not possible to acquire a house with its foundations. The inference, therefore, is that in order that a right of pre-emption could be claimed, the pre-emptor must have such a right both with respect to the house as also with respect to the land over which the house stands--meaning thereby that, if the pre-emptor is unable to pre-empt with respect to the land over which the house stands, he cannot be entitled to claim a right of pre-emption even with respect to the house apart from the land. One of the conditions for claiming a right of pre-emption is that the thing sold must be akar. Or what comes within the meaning of it, whether the akar be divisible, or indivisible, as a bath, or well or a small house, and that there must be an entire cessation of all right on the part of the seller. (Vide--Digest of Moohummudan Law by Bailie at page 472). The statement of law on this subject as given in Hamilton's Hedaya, at page 558, is to the following effect:- "It is observed, in the abridgment of Kadoo-ree that Shaffa does not affect even a house or trees when sold separately from the ground on Which they stand. This opinion (which is also mentioned in the Mabsoor) is approved; for as buildings and frees arc not of a permanent nature, they are therefore of the class of moveables. There is, however, an exception to this in the case of the upper story of a house; for it is subject to Shaffa,--whence the proprietor of the under-story is the Shatee, as is also the proprietor of the upper the Shaffa of the under one notwithstanding their entries be by different roads." 8. In Sheikh Mahomed Hossain v. Sham Mohsin Ali, 6 Beng LR 41 at p. 50 (FB), it was pointed out that it was probably impossible to discover the precise meaning which was put upon the word Akar at the time when the Arabic texts were composed, and that looking not merely at the words used in the Hedaya, but at the illustrations given in the second and third chapters of the same book, at the state of society when the law was first altered, and at the inconveniences against which it was probably directed, the better opinion might be that Akar should be construed to mean houses and small enclosures of land. The interpretation of the term 'Akar' was the subject-matter of decision in this Court in the case of Mt. Sheorathi v. Munshi Lal, ILR 6 pat 154 : (AIR 1928 Pat 542), where it was held that 'akar' in the sense in which it is liavble to preemption has an extended meaning, and it is not confined to land covered with buildings. It was pointed out in that case that it may be a well or a bath, no less than a house, and it need not be a garden in an ordinary sense of that term but may be a vineyard and if not all, at least certain other lands, besides the site of a house, well or bath and a vineyard, at least if the land is a small enclosure. 9. The authorities referred to above give a clear indication that the right of pre-emption with respect to a house cannot be available to a pre-emptor apart from the land over which it stands. The pre-emptor has to exercise the right of pre-emption over the land as well as the house and not only over a portion or share of it. It is also clear that the right of pre-emption with respect to a house must go along with the right of pre-emption with respect to the land over which it stands, and it is inconceivable to avail of such a right only with respect to the house without having right Over the land. 10. Counsel for the appellant has, however, contended that a right of pre-emption can be exercised with respect to a portion of the property sold and it is not necessary in law to claim that right over the entire subject-matter of the sale. In support of the above proposition, reliance has been placed on a Bench decision of this Court in AIR 1937 Pat 578 a reference to which has already been made earlier, in which case, along with the sale of certain milkiat interest, some mokarrari as well as raiyati lands were transferred by one and the same transaction. It was held by this Court that, even though the right to pre-emption could not be exercised with respect to the mokarrari and raiyati lands the suit for pre-emption in respect of the milkiat right only was maintainable. That was a case where two different kinds of interests, namely, miikiat as well as tenancy interests, were separable and the enjoyment of the milkiyat interest had not to defend on the enjoyment of the mokarrari or the raiyati interest The principle of law laid down in that case, therefore cannot be applicable to the present case because the right of enjoyment of a house is not independent of the right of enjoyment of the land over which the house stand. The enjoyment of occupation of the house cannot be availed of unless the pre-emptor claims enjoyment of the foundations and consequently the enjoyment of the land over which the foundations stand. In the present case, therefore, the right of enjoyment of the house and that of the land cannot by any stretch of imagination be made separable, and the one must go with the other. 11. On a careful consideration of the authorities and the principle of law involved in the case, my concluded opinion is that in case of a sale of different properties, the right of pre-emption cannot be exercised with respect to one or some of them only if the enjoyment thereof is dependent on the property over which that right is not and cannot be exercised in law and consequently, where the land is sold with a house thereon, pre-emption cannot be allowed with respect to the house only apart from the land over which that right could not be exercised on account of its being a lease-hold properly. The sale of a house for inhabitation or occupation, without the sale of its foundations and the land over which the foundations stand, is inconceivable, except, as pointed out in Hedaya. in case of the sale of the upper storey of a house. The decision in AIR 1921 Pat 164 that the pre-emptor is entitled to a decree for pre-emption in respect of the house apart from the mokarrari land over which that house stood is not correct and is overruled to that extent. 12. An alternative argument was advanced on behalf of the respondent that the finding of the final Court of fact is not enough for holding due and legal performance of at least the second ceremony, if has been contend d that it is essential to find that there was invocation to the witnesses to bear testimony to the demand as a part of the second ceremony to be performed, and, in support of this contention, reliance has been placed on the case of Medni Prosad v. Suresh Chandra, AIR 1943 Pat 96. Counsel for the appellant has not challenged the correctness of the principle of law involved in the above submission, but he has submitted that the point was not raised specifically in the Courts below, and, as the question whether there was invocation to the witnesses or not is a question of fact, it should not be allowed to be raised in second appeal. Counsel for the appellant has in that connection drawn our attention to the evidence of P. W. 1, the plaintiff himself, and P. W. 4, who have specifically stated about such invocation to the witnesses to bear testimony. There is thus no merit in the alternative argument. The plaintiff, however, has to fail on the ground the in the present case, he had no legal right of pre-emption with respect to the house only. 13. The result, therefore, is that the appeal fails, and is dismissed with costs, and the decrees of the Courts below dismissing the suit are affirmed. Ramaswami, C.J.
14. I agree. Kanhaiya Singh, J.
15. I agree.