Allahabad High Court
Afzal Alim vs Abdul Mughni on 2 November, 2007
Equivalent citations: 2008(1)AWC651
Author: Sunil Ambwani
Bench: Sunil Ambwani
JUDGMENT Sunil Ambwani, J.
1. This second appeal was dismissed on 2.8.2006 for want of prosecution. Shri M.A. Qadeer, learned Counsel for the appellant has filed a restoration application on 20.2.2007 on the ground that by way of bona fide mistake his office had failed to mark the case in the cause list. There is no serious opposition to this application. The cause shown is sufficient. The order dated 2.8.2006 is recalled. The second appeal is restored to its original number and was heard.
2. Heard Shri M. A. Qadeer, learned Counsel for the plaintiff-appellant and Shri B. D. Mandhyan, for the defendant-respondent.
3. The Original Suit No. 256 of 1970 was filed by the plaintiff Abdul Hafiz for possession of the disputed property on payment of Rs. 8,000 to the defendant based on the right of pre-emption in the Muslim personal law. The plaintiff alleged that the house in suit originally belonged to one Abdul Qayyum. It consists of two portions namely 'mardana' and 'janana' situate in Village Phalauda, District Meerut. After the death of Abdul Qayyum the house was inherited by his four sons and one daughter. The plaintiff is one of the sons of his daughter. Shri Abdul Rashid is his brother. Abdul Rashid was succeeded by his three sons, including Abdul Hasib, one daughter and a widow, Abdul Hasib had a share in the house in dispute. The plaintiff also holds a share in it, and was co-sharer (shafe-e-sharik) in the house.
4. Abdul Hasib transferred his entire share to the defendant-Abdul Mughni by sale-deed dated 30.8.1969 for Rs. 8,000. The recital in the sale-deed disclosed that the vendor had 25/44 share in the property. The plaintiff filed the suit for enforcing the right of pre-emption of all the rights of Shri Abdul Hasib, which was transferred by him by the sale-deed. It was alleged in the plaint that the plaintiff was 'shafe-e-sharik' in the property, whereas the defendant was a stranger having neither equal nor better rights in the house in question. The plaintiff learnt of the sale dated 24.9.1969 for the first time at village Nagla Hereroo through one Shri Rashid Ahmad, who had learnt about the sale-deed at Mawana on the same day. The plaintiff immediately performed 'Talab-e-Abwal' (the first option of declaration of pre-emption), and proceeded to Phalawda, where the defendant resided and performed the second talab (the second declaration) on the property. Neither the vendor nor the vendee was present at the time of second talab. The defendant had gone in 'tablique' (the congregation at the Masjid after namaj), and that the persons present assured the plaintiff that the matter shall be amicably settled and the house shall be transferred in favour of the plaintiff. The defendant returned to his home in the end of October. 1969. The plaintiff had his household effects in the major portion of 'janana house' and that only one room and one teedri was under the occupation of the defendant as licensee of the plaintiff. The mardana house was in dilapidated condition. When the defendant learnt about the exercise of right of preemption of the plaintiff, he broke open the locks of the plaintiff, took possession of all the rooms and misappropriated the plaintiffs goods stored therein. The plaintiff sent information to Police Station Mawana on 28.10.1969. At that time there were number of common relatives and friends, and through their intervention one Jafar Ali was appointed as Arbitrator. The plaintiffs licence was terminated on the same day. The Arbitrator gave his award, which was not acted upon. The plaintiff instructed his counsel to give notice to the Arbitrator and to the defendant but the file was lost and notices could not be sent and therefore, the suit was filed.
5. The defendant contested the suit on the ground that there were other heirs of Abdul Qayyum and Abdul Rashid. The plaintiff was not in possession of any portion of the house. He was not a licensee. The defendant did not break the locks or misappropriated his goods. Shri Jafar Ali was never appointed as Arbitrator. The basis of right of pre-emption was not disclosed. There is no statutory law for pre-emption particularly for residential house in the State of U. P. In Village Phalawda the right of preemption was never enforced or recognised. The plaintiff was aware of the sale-deed by Shri Abdul Hasib in favour of the defendant from the very beginning and never objected to the same. The disputed house consists of two independent houses namely 'janana' portion and 'mardana' portion. The defendant was co-sharer in mardana portion. The janana portion is in the possession of Abdul Rashid and after his death Shri Abdul Hasib is in possession of that portion. The plaintiff was not in possession of the house. The plaintiff's right extinguished on account of adverse possession of Shri Abdul Rashid and Shri Abdul Hasib for more than 12 years.
6. Both the parties are Sunni Muslim. The suit was based on right of pre-emption on the basis that plaintiff was 'shafe-e-sharik' in the property sold to a stranger after exercising the option and making the declarations in presence of witnesses.
7. The trial court found that the plaintiff is co-sharer in the house of the suit and he had a right to preemption. The first talab was made after 12 days of registration of the sale. It does not appear to be delayed, which could have affected the plaintiffs right of pre-emption. There was no improbability in the evidence of the witnesses, who had deposed that the plaintiff has received information of sale at Mawana and exercised the first talab. The second talab was performed on the disputed property as the vendor and vendee were not available. The witnesses have stood the test of cross-examination. Both talabs are performed in accordance with the law of pre-emption. The trial court decreed the suit on 13.3.1975 for possession on payment of Rs. 8,000 to the defendant on or before 31st May, 1975 after which the defendant was directed to deliver the possession of (he property to the plaintiff.
8. The Fourth Addl. District Judge, Meerut allowed the Civil Appeal No. 68 of 1975 and dismissed the suit on the findings that the plaintiff did not make the requisite talabs required to enforce the right of pre-emption. The appellate court relied upon Muslim Law by Tayyeb Ji and Shri Babu Ram Sharma. Right of pre-emption is known in Muslim Law as 'SHUFA'. It is the right, which the owner of a share in the immovable property possesses to acquire another's share in immovable property for the price for which it has been sold to another person. The right of SHUFA can be claimed by three different classes of persons and one of them is co-sharer ('shafe-e-sharik'), the other two classes are those, who claim the right by way of being owner of adjoining property.
9. The appellate court has relied upon the judgment in Sheikh Mohammad Rafiq v. Khalilul Rehman and Anr. . which is the leading case on the point. Para 9 of the judgment deals with Mohammedan Law relating to demand before the suit for pre-emption is filed. The appellate court has relied upon these observations. In order to decide this appeal, it is necessary to quote these observations as follows:
The Mohammedan Law relating to demand before filing a suit for pre-emption is of a highly technical nature. It is stated in the Principles of Mohammedan Law by Mulla. 16th Edn., that the talab-i-mowasibal is spoken of as the first demand and the talab-i-ishad as the second demand. The third demand consists of the institution of suit for pre-emption. Both the talabs are conditions precedent to the exercise of the right of preemption. The first talab should be made as soon as the fact of the sale is known to the claimant. Any unreasonable or unnecessary delay will be construed as an election not to pre-empt. In some of the cases referred to a delay of 24 hours or even 12 hours was considered too long and it was held that where there has been so much delay the pre-emptor was not entitled to sustain his claim for pre-emption. There are other highly technical rules about the presence of witnesses and the nature of evidence which they should give with regard to the second demand, the view of the High Courts being conflicting in the matter.
It seems to us that a strict compliance with all the requirements of the two demands which are necessary before a pre-emptor can succeed in a suit for pre-emption under the Mahommedan Law may become very difficult, particularly, on the question of the promptness and avoidance of delay with regard to the first demand. As stated before a sale shall be deemed to be completed only after the sale-deed has been copied in the books of the Sub-Registrar. If the demand has to be made after such completion it would be virtually impossible or at any rate extremely difficult for any pre-emptor to make the first demand as promptly as required under the principles of Mahommedan Law. It cannot be expected that a pre-emptor should keep a perpetual watch and go on making constant inquiries with regard to the point of time when the office of the Sub-Registrar would copy out the sale-deed in the prescribed book. However, that is a matter on which legislation may become necessary and that is for the Parliament to consider and not for us.
10. The appellate court discussed the evidence and found that the Civil Judge did not consider the question of 'talabs' in accordance with the provisions of Muslim Law as interpreted by Hon'ble Supreme Court. According to the plaintiff he came to learn for the first time from Rashid Ahmad at Nagla Hereroo on 24.9.1969 that the sale-deed was executed by Abdul Hasib in favour of defendant on 30.8.1969. Abdul Rashid had also come to know about it the same day. Abdul Hafiz stated in his statement that on 24.9.1969 at about 5.00 p.m. Rashid Ahmad told him about the sale-deed. The house in question is in town Phalawda, which is 2 1/2 miles from Nagla Hereroo. The plaintiff alongwith Rashid Ahmad went to Phalawda at that very time and reached there by sun set. He enquired about the defendant, Abdul Mugni from some namazis, who were coming out of the mosque and was informed that he had not been in Tablique and that he came to know from Rafiq (P.W. 4). Halim and Tahir (P.W. 3). The witness Shri Rashid Ahmad (P.W. 2) stated that he had informed the plaintiff in Nagla Hereroo about the sale-deed on 24.9.1969. He was in the sitting room. The plaintiff had no information of the sale-deed and manner in which he will claim preemption. Rashid Ahmad is the brother of plaintiffs wife. Rashid admitted this relationship but then stated that now his sister, who was married to Abdul Hafiz is dead and that they have no relationship. In his cross-examination Abdul Rashid stated that he came to know about the sale-deed in Mawana outside the tehsil, where he had gone to purchase some plots. The Katib told him about the sale-deed. Mahboob Katib had asked Rashid that he had known about the sale-deed of Abdul Mugni. He could not explain as to why Mahboob told him this fact. Mahboob is resident of village Phalawda. A suggestion was given that Mahboob was keeping grudge against the defendant as his uncle Masoom Ali and defendant were candidates in elections in which some election petitions were filed. When Rashid was asked as to how Mahboob could have knowledge of the sale-deed, he changed his stand and volunteered to state that since he is moharrir of Hasib, he had come to know of the sale-deed.
11. The appellate court found that when Mahboob told him about the sale-deed the plaintiff did not inspect the record in Sub-Registrar's Office. He could not state as to when he had last met Mahboob. The appellate court found that evidence of Rashid Ahmad did not inspire confidence that he had informed Abdul Hafiz about the sale-deed in the manner as stated by him. The plaintiff had concocted the whole case and that his evidence is not of any benefit to him specially when the basis of information of sale-deed is doubtful. The appellate court, thereafter, discussed the statement of Afaq (P.W. 5), who was witness to the talks between plaintiff and Abdul Rashid and concluded that Abdul Rashid did not inform the plaintiff about this sale-deed and that whole story was set up only to exercise the right of pre-emption. There was no question of any talab. With regard to second talab the appellate court found that both Mohammad Tahir and Rafiq Ahmad coming out of mosque were chance witnesses. They had some grudge against the defendant. Mohd. Tahir was member of Town Area and Zakiuddin was the Chairman. Alimuddin is the brother of Zakiuddin and the witness is the brother-in-law of Alimuddin. He had lodged a report against the defendant, who is related to him and was not in good terms with him. The plaintiff had never enquired about the whereabout of the defendant. There were many other namazis, who could be summoned to give evidence. The appellate court found that evidence of these two witnesses regarding second talab did not inspire confidence. The second talab was required to be made in the presence of atleast two witnesses and their names should have been disclosed in the plaint. The appellate court found that the plaintiff did not make the two talabs and was not entitled to right of pre-emption.
12. The Court while admitting the appeal on 4.1.1978 did not frame any substantial question of law.
13. Shri M. A. Qadeer, learned Counsel for the appellants submits that plaintiff was co-sharer (shafe-e-sharik) and had right of pre-emption. He made the two talabs to exercise the right of SHUFA called as talab-i-mowasibat, when the first demand was spoken and the talab-i-ishhad as second demand. The third demand is institution of suit of pre-emption. Both the Talabs are conditions precedent and were exercised in accordance with law. The plaintiff proved on record, as found by the trial court that first talab was made without any delay and that the second talab was also made in the presence of two witnesses. The appellate court committed gross error in discarding the testimony.
14. Shri M. A. Qadeer has relied upon Mulla's Principles of Mahomedan Law (19th Edition) in submitting that right of SHUFA is a right which the owner of an immovable property possesses to acquire by purchase another immovable property, which had been sold to a third person. Pre-emption may also be created by contract. In the present case the plaintiff claimed right of preemption under the Muslim Personal Law applicable to the parties. The right as stated in Section 232, arises only out of valid, complete and bona fide sale. It does not arise out of gift (hiba), sadaqah, wakf, inheritance, bequest or a lease. Nor does it arise out of a mortgage. The ground of preemption under Section 233 must continue until the decree is passed. If there are more shafis of the same class (co-sharer), Section 235 provides that sale made by one of them to another, gives right to claim of pre-emption against the other shafis. Demands for pre-emption under Section 236 have to be made by person claiming right of pre-emption. The first demand namely 'talab-i-mowasibat' (literally, demand of jumping, that is, immediate demand) has to be made immediately on receiving the information for the sale and second demand namely, 'talab-i-ishhad' (demand with invocation of witnesses) has to be made with the least practicable delay confirming the intention, either in the presence of the buyer, or the seller, on the premises, which are the subject of sale. These demands may not be made in person. It is sufficient if they are made by manager or person previous authorised by pre-emptor. 'Talab-i-ishhad' is to be made in the presence of buyer, who may not be actually in possession of the property. It is also possible that 'talab-i-mowasibat and talab-i-ishhad' may be combined. In such case it has to be seen whether there was any occasion or opportunity for making first demand of talab-i-mowasibat separately.
15. Shri M. A. Qadeer submits that there is sufficient and unimpeachable evidence to show that the plaintiff had made 'talab-i-mowasibat'. and thereafter without any unreasonable delay 'talab-i-ishhad' in the presence of two witnesses. In Ganga Parsad v. Ajudhia (1905) 28 All 24, it was held that omission in talab-i-ishhad of the invocation addressed to the witnesses was not necessarily fatal.
16. The law of SHUFA is fairly settled. The right of pre-emption has to be exercised by co-sharer by making two demands, first of which should be made immediately of learning about the sale in which plaintiff has right of pre-emption and second within reasonable time before witnesses. The second demand may or may not be in presence of defendant and can also be made on the property in absence of defendant. The appellate court did not commit any error of law in understanding Muslim Law of SHUFA and proceeded to examine the evidence of the exercise of two rights. The first appellate court had the right to re-examine and appreciate the evidence and to come to a different conclusion than what was drawn by the trial court. After considering the statement of witnesses in detail the appellate court disbelieved the testimony of Rashid Ahmad who was related to the plaintiff and found that it was doubtful whether he had any knowledge of the sale-deed and had any concern with it. He could not withstand the cross-examination of the fact as to how he came to know to the sale-deed. The other two witnesses namely Mohammad Tahir and Rafiq Ahmad were also found to be interested witnesses. The appellate court after examining them found that they had old grudge against the defendant and it was very unlikely that Abdul Hafiz could keep a diary of remembering time and date on which second talab was made in his presence.
17. After the amendment of Section 100 by Act No. 104 of 1976 w.e.f. 1.2.1977 the second appeal can only be heard on substantial questions of law. The scope of hearing has been substantially reduced and has been confined to question of law (1) which is of general public importance, or (2) which directly and substantially affects the rights of the parties, and is not covered by a decision of the Supreme Court or Privy Council or Federal Court, or (3) is not free from difficulty, or (4) call for discussion of alternative views vide Rajeshwari v. Puran Indoria and Govindaraju v. Mariamman (2005) All CJ 1107 : 2005 (1) AWC 787 (SC).
18. Having considered the submissions of the parties, I do not find that any substantial question of law is involved in this case. The submission of Shri M. A. Qadeer at best would require reconsideration of evidence.
19. In second appeal the Court will be very slow to re-appreciate the evidence, unless the evidence is not admissible, misread or taken out of context. Such is not the case in this second appeal.
The second appeal is dismissed.