Jharkhand High Court
Shiv Kumar Shaw S/O Late Sita Ram Shaw vs Deleted on 14 November, 2022
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
S.A.No.43 of 2004
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No.43 of 2004
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(Against the judgment dated 25.06.2003 passed by learned 3rd Additional District Judge, (Fast Track Court), Jamtara in Title Appeal No.18 of 1996/ 07 of 2002)
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Shiv Kumar Shaw S/o Late Sita Ram Shaw, resident of Jamtara, P.O. + P.S. + Sub-division + District- Jamtara.
.... .... .... Defendant 1st Party/Respondent 1st Set/Appellant Versus
1. Deleted.
2. Prabin Kumar Tibriwal, adopted son of late Jaharmal Tibriwal.
3. Anita Kumari, daughter of late Jaharmal Tibriwal
4. Maya Agarwal wife of Sri Mohanlal Agarwal and daughter of late Jaharmal Tibriwal.
5. Reno Latte wife of Sri Arun Kumar Latte and daughter of Late Jaharmal Tibriwal.
All residents of Dumka Jamtara Road, Jamtara, P.O. + P.S. + Sub-division & District- Jamtara .... .... .... Plaintiffs/Appellants/Respondent 1st Set.
6. Madan Lal Bajaj
7. Bishnu Dayal Bajaj
8. Ram Jagat Bajaj.
9. Pawan Kumar Bajaj.
All sons of late Jugal Kishore Bajaj, resident of Jamtara near Sadar Hospital, Jamtara, P.O. + P.S. + Sub-division + District- Jamtara .... .... .... Defendant 2nd Party/Respondent 2nd Party/ Respondent 2nd Set
10. Parmila Devi Sah w/o Jagdish Sah D/o Late Sitaram Shaw R/o Village- Babluganj, P.O. + P.S. Barshat, Dist- Bhagalpur (Bihar) .... .... .... Proforma Respondent
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For the Appellant : Mr. Aashish Kumar, Advocate For the Respondents : Mr. Manjul Prasad, Sr. Advocate 1 S.A.No.43 of 2004 Mr. Kaushal Kishore Mishra, Advocate Mr. Baban Prasad, Advocate
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PRESENT HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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By the Court:- Heard the parties.
2. This Second Appeal, under Section 100 of the Code of Civil Procedure, has been preferred against the judgment and decree dated 25.06.2003 passed by learned 3rd Additional District Judge, (Fast Track Court), Jamtara in Title Appeal No.18 of 1996/ 07 of 2002 whereby and where under the learned First Appellate Court in the judgment of reversal has set aside the judgment and decree of dismissal of Title Suit No.09 of 1987 passed by the Subordinate Judge No.1, Jamtara dated 24.06.1996.
3. The case of the plaintiff in brief is that the plaintiffs are the successors-in-interest of one Jaharmal Tibriwal who died in March, 1991. The suit plot having total area of 12 decimals was purchased by Jaharmal Tibriwal's first wife Sita Devi in the year 1954 by a registered deed of sale. Jaharmal Tibriwal and Sita Devi constructed house over 6 decimals of land in the Northern side of the said land and started business there. The remaining area of 6 decimals of land on Southern side, was used by them as their vegetable garden and paddy drying platform. The entire water from their house used to pass through the said Southern portion. The passage of the said land also lies through the house of Jaharmal Tibriwal. The sanitary latrine of Jaharmal Tibriwal opens towards the above land and the septic tank of latrine is also situated on this land. The said southern part of the plot is also surrounded by brick walls since 1954-55 which is in continuation of the boundary wall of Jaharmal Tibriwal's above house. Sita Devi died in the year 1958 without any issue and upon her death her right, title and interest on the said 12 decimals of land devolved upon her husband Jaharmal Tibriwal. The plaintiff no.1 married Jaharmal Tibriwal in the year 1959 and through her Jaharmal Tibriwal had got three daughters being the plaintiff Nos.3, 4 and 5. The plaintiff No.2- Prabin Kumar was adopted by Jaharmal Tibriwal with the consent of 2 S.A.No.43 of 2004 plaintiff No.1 in 1976. On 23.11.1959 Jaharmal Tibriwal transferred the land in favour of his sister Chameli Devi by a registered deed of sale for a consideration of Rs.599/- only. Chameli Devi died leaving behind her husband and sons who are her legal heirs. On 26.09.1986, the defendant Second Party transferred the suit land in favour of defendant First Party i.e. Sitaram Saw on consideration of Rs.9,000/- only through a registered deed of sale No.2756 of 1986 in the office of Sub Registrar, Jamtara. None of the defendants intimated about the sale to the plaintiffs nor the defendants Second Party ever made any offer to the plaintiffs for purchasing the suit land although the plaintiffs were always ready to purchase the suit land at a reasonable price even though the defendants were aware about the right of pre-emption of the plaintiffs. The plaintiffs further pleaded that there is a local custom of pre-emption in cases of sales of immovable properties in the State of Bihar amongst the Hindus which has also been judicially recognized. The plaintiffs then pleaded that the Mohammedan Law of pre-emption is, by the said custom, applicable to the parties who are natives/domiciled in Bihar except that no particular form of 'Talab' or demand is necessary but a demand is required to be made in any form. The plaintiffs then pleaded that they are the participators in appendages and amenities and are also owners of adjoining property relating to the suit land. The plaintiffs claimed that the purchaser of the suit land namely the defendant first party has no right superior to that of the defendant second party in respect of the suit land. The plaintiffs came to know about the sale-deed executed by the defendant for the first time on 12.02.1986 and immediately they made a search for the defendant first party for placing the demand of pre-emption before him but he was not found. On 22.12.1986, the plaintiffs called the defendant second party No.3- Madanlal Bajaj at the suit premises and in presence of several witnesses made a demand for pre-emption and also offered Rs.9,000/- being the consideration amount for the pre-emption and called upon them to convey the suit land to them and cancel the sale- deed executed in favour of the defendant second party. The defendant second party No.3 promised to consult with the defendant No.1 and let the plaintiffs know the result of their discussion but the defendant No.3 3 S.A.No.43 of 2004 did not do anything. Thereafter, the plaintiffs sent letters to the defendant first party and second party separately repeating the demand of pre- emption. The defendant second party received the said letter on 31.12.1986 but the letter addressed to the defendant first party was returned back to the plaintiffs unserved by the postal authority since he was traceless. The plaintiffs asserted that the sale of the suit property by the defendant second party in favour of the defendant first party is illegal and has infringed the right of pre-emption of the plaintiffs. The plaintiffs prayed for the following reliefs:-
(i) A declaration of the plaintiff's right of pre-emption in respect of suit property and on such adjudication a further declaration of the invalidity of Sale-Deed No.2756 of 1986 of Sub-Registration Office, Jamtara.
(ii) Cancellation of Sale-Deed No.2756 of 1986 of Sub-Registration Office, Jamtara.
(iii) A decree commanding the defendants to convey the suit property by Registered Instrument to the plaintiffs at a consideration of Rs.9,000/- only within a specified time.
(iv) Costs of suit.
(v) Such other relief or reliefs the plaintiffs are entitled to in equity and justice.
4. In his written statement, the defendant No.1 challenged the maintainability of the suit on various technical grounds and further pleaded that the Jaharmal Tibriwal and his wife Sita Devi constructed their house on 6 decimal of land in northern side and the remaining 6 decimal land was also surrounded by the boundary wall and there is a well on that portion and the said 6 decimal of land has a separate door for ingress and egress. It is then pleaded by the defendant first party that the plaintiff's residential building has or had separate entrance and exit. The entire water used to pass through the drain situated by the side of residential house within 6 decimal of land where they had constructed their residential house and the entire water passes to the road side drain situated to the west of their residential house. The sanitary latrine of Jaharmal Tibriwal never opened towards the land sold to the defendant No.1 nor does the septic tank of latrine situate in the land sold to the defendant No.1. The defendant first party had no knowledge of marriage of plaintiff No.1 with Jaharmal Tibriwal who is father of plaintiff Nos.3 to
5. It is then pleaded by the defendant first party that the plaintiffs had knowledge that the defendants second party were going to sell the suit 4 S.A.No.43 of 2004 land to defendant No.1 as they are of the same locality and has or had communicating terms between them but the plaintiffs never expressed their desire to purchase the suit property which was ultimately sold to the defendant first party. The defendant denied any right of pre-emption of the plaintiffs as the plaintiffs and the defendant first party are not Class I heir under Section 22 of the Hindu Succession Act, 1956. The defendant No.1 next submitted that since the plaintiffs and the defendants are not Mohammadans, therefore, the law of pre-emption as envisaged in Mohammadan law is not applicable to this case. The defendant next pleaded that there is no law of pre-emption on the ground of vicinage, amenities and appendages by custom as it creates an unreasonable restriction on the fundamental rights guaranteed under the Constitution of India to sell and purchase any property or to hold any property by a citizen of India. The defendant further pleaded that there is no local custom of pre-emption in cases of sales of immovable property in the State of Bihar amongst the Hindus and the said custom, if any, is void and declared unconstitutional by the judicial pronouncements. The defendant next submits that the judicial pronouncements have declared the law of pre-emption based on the ground of vicinity void and as it infringes the fundamental rights guaranteed under the constitution.
5. On the basis of rival pleadings of the parties, learned trial court framed the seven issues which read as under:-
(1) Is the suit as framed maintainable?
(2) Has the plaintiff any cause of action and right to sue?
(3) Is the suit hit by principle of waiver and estoppel?
(4) Is the plaintiff entitle for declaration of right of pre-emption in respect of
the suit property?
(5) Is the plaintiff entitled for a declaration of invalidity of sale deed no.2756
of 1986?
(6) Is the plaintiff entitled for a decree commanding the defendant to convey
the suit property by registered instrument to the plaintiff on a consideration of Rs.9,000/- within a specified time? (7) Is the plaintiff entitle for any other relief or reliefs?
6. The learned trial court first took up issue Nos. (4) to (7) together. The learned trial court took note of the fact that the claims of the plaintiffs are based on the custom of vicinage on the ground on common amenities and appendages. The trial court considered that the Hon'ble Supreme 5 S.A.No.43 of 2004 Court in its judgment in the case of Sant Ram & Others vs. Labh Singh & Another reported in AIR 1965 SC 314 declared that pre-emption on the basis of vicinage is void. The trial court also considered the admitted fact that Jaharmal Tibriwal also sold 6 decimal out of 12 decimal of land through registered deed of sale on 23.11.1969 to Chameli Devi vide Ext. A and in the said deed Jaharmal Tibriwal had not reserved any right of appendages and amenities on the land sold by him rather it has clearly been mentioned in the said deed of sale that Chameli Devi would be entitled to possess the land independently to which Jaharmal Tibriwal as his successors-in-interest will never obstruct and will never object. Chameli Devi was given right to transfer the said land by sale, gift or by other instrument to anybody according to her will and Jaharmal Tibriwal or his heir will never object to the same. The trial court also considered that Chameli Devi, after purchasing the suit land, has got her name mutated in the Sherista of Government and surrounded it by compound wall and she kept the door for ingress and egress from the land which opened on Dumka-Jamtara Road and this completely falsifies the version of the plaintiff that the land in suit is within the compound wall of plaintiff and it has no other ingress or egress and only passage is through the land of the plaintiffs. The trial court also considered the fact that as Jaharmal Tibriwal had completely divested himself from the suit land and has not reserved any right in the same so he cannot claim any right of pre- emption from the person to whom the land in suit was transferred by heirs of Chameli Devi as the plaintiff cannot claim any right being the heir of Jaharmal Tibriwal, which right cannot be claimed by Jaharmal Tibriwal in respect of the suit land. The trial court also observed that there is no custom in the district of Dumka or in Jamtara on pre-emption. The trial court also considered the fact that the plaintiff is admittedly not a co- sharer or co-owner of the suit land, hence, the plaintiffs are neither co- sharers nor co-owners of the common right with Chameli Devi or with her heir in the land so they cannot claim right of pre-emption on the basis of common appendages and amenities and decided the said issues in favour of the defendants and against the plaintiffs.
6 S.A.No.43 of 20047. Thereafter, the trial court took up issue No. (3) and disposed of the same as rejected as not pressed.
8. Lastly, the trial court took up issue Nos. (1) and (2) together and came to the conclusion that the suit as framed, is not maintainable and dismissed the suit on contest.
9. Being aggrieved by the judgment and decree passed by the trial court being the Subordinate Judge No.1, Jamtara, the appellants filed Title Appeal No.18 of 1996/07 of 2002 in the court of 3rd Additional District Judge (Fast Track Court), Jamtara whereby and where under the learned First Appellate Court allowed the appeal as well as decreed the Title Suit of the plaintiff.
10. The learned First Appellate Court formulated the following two questions to be answered which are as follows:-
(i) Does the lower courts commit error in deciding the issue of customary law of pre-emption?
(ii) Whether the plaintiff could be said to be a participator in the appendages and the amenities with the defendants second party/ respondent second party in the property which was the subject of the sale sought to be pre-empted?
11. The learned First Appellate Court made independent appreciation of the evidence in the record and first took the question No.(i) and held that if the right of pre-emption is set up by non-muslims on the basis of a custom, the existence of the custom is a matter to be established by proper evidence and held that the judgment of the trial court on the issue of customary law of pre-emption is not sustainable and accordingly set aside findings of the trial court on that issue and held that the custom of pre- emption are established in the province of Bihar. The learned First Appellate Court thereafter took up issue No.(ii) and by considering the decisions of Allahabad High Court in the cases of Mahboob Hasan & Another vs. Ram Bharosey Lal & Another reported in AIR 1966 Allahabad 271 and in the case of Jagdish Sharan vs. Brij Raj Kishore & Another reported in AIR 1972 Allahabad 313 observed that right of pre-
7 S.A.No.43 of 2004emption on the basis of right stands in a different footing than this case and also observed that the plaintiffs are not claiming pre-emption on the basis of vicinage rather they are claiming their rights on the basis of participator and amenities and also owners of adjoining properties. The learned First Appellate Court observed that the right to pre-emption in respect of property shall vest, where the sale is of a property having a common entrance from the main street with other properties, upon the owners of such properties. The learned First Appellate Court made independent appreciation of the evidence in the record and came to the conclusion that the plaintiffs proved that the plaintiffs enjoyed the properties already owned by them and appendages and amenities in common with the properties in the suit of which the sale was sought to be pre-empted and also held that in this suit, the plaintiffs are claiming themselves not on the basis of vicinage rather it is on the basis of amenities and appendages like common entrance, stair etc. and thus, allowed the appeal and decreed the suit of the plaintiff.
12. At the time of admission of this appeal vide order dated 15.07.2019, the following substantial question of law was formulated:-
"Whether only for the purpose of enjoying a common facility, legal heir of original land holder can seek right of preemption against the second purchaser?"
13. Mr. Aashish Kumar- learned counsel for the appellants submits that the right of pre-emption offends the right of property as enshrined in Article 19 (i) (f) of the Constitution of India. In support of his contention, Mr. Aashish Kumar relies upon the judgment of the Hon'ble Supreme Court of India in the case of Bhau Ram vs. Baij Nath Singh & Others reported in AIR 1962 SC 1476. Mr. Kumar next submits that though Article 19 (i) (f) of the Constitution of India has been omitted by the 44th Constitution (44th Amendment Act, 1978) w.e.f, 20.06.1979 but Article 300 (A) has been inserted by the Constitution 44th Amendment Act, 1978 w.e.f. the same day. Mr. Aashish Kumar submits that paragraphs-7, 11, 12 and 13 of the case of Bhau Ram vs. Baij Nath Singh & Others (supra) which reads as under:-
7. "Let us further look to the broader aspects of the provisions relating to pre-emption by vicinage. It may be stated that the right of pre-emption was 8 S.A.No.43 of 2004 not recognised under the Hindu law and is not enforced in large parts of this country to the south of the Vindhyas. It came to be enforced after the advent of Mahomedan rule as based on custom which was accepted by courts, particularly in Northern India. While in Northern India the courts enforced the right of pre-emption based on custom, even where there was no statutory law of pre-emption holding that it was in accordance with justice, equity and good conscience, in Southern India the view taken was that, it was opposed to principles of justice, equity and good conscience; (see Ibrahim Saib v. Muni Mir Udin Saib, 6 Mad H. C. R. 26 and Mohomed Beg Amin Beg v. Narayan Meghaji Patil, ILR 40 Bom 358: (AIR 1916 Bom
255)). The reasonableness of a custom is, however, not a constant factor and what is reasonable at one stage of the progress of society may not be so at another stage. It is in this context what we have to judge the law of pre-
emption as it was later put into various statutes. Before the Constitution came into force, the statutes if they were passed by competent authority, could not be challenged; but we have now to judge the reasonableness. of these statutes in the light of the fundamental rights guaranteed to the citizens of this country by the Constitution. In a society where certain classes were privileged and preferred to live in groups and there were discriminations, on grounds of religion, race and caste, there may have been some utility in allowing persons to prevent a stranger from acquiring property in an area which had been populated by a particular fraternity or class of people and in those times a right of pre-emption which would oust a stranger from the neighbourhood may have been tolerable or reasonable. But the Constitution now prohibits discrimination against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them under Art. 15 and guarantees a right to every citizen to acquire, hold and dispose of property, subject only to restrictions which may be reasonable and in the interests of the general public. Though therefore the ostensible reason for pre-emption may be vicinage, the real reason behind the law was to prevent a stranger from acquiring property, in any area which had been populated by a particular fraternity or class of people. In effect, therefore, the law of pre-emption based on vicinage was really meant to prevent strangers i.e. people belonging to different religion, race or caste, from acquiring property. Such division of society now into groups and exclusion of strangers from any locality cannot be considered reasonable, and the main reason therefore which sustained the law of pre-emption based on vicinage in previous times can have no force now and the law must be held to impose an unreasonable restriction on the right to acquire, hold and dispose of property as now guaranteed under Art, 19(1)(f), for it is impossible to see such restrictions as reasonable and in the interests of the general public in the state of society in the present day,.
11. This brings us to the consideration of the first ground which gives a right of pre-emption to a co-sharer in the property sold. The question as to the constitutionality of a law of pre-emption in favour of a co-sharer has been considered by a number of High Courts and the constitutionality has been uniformly upheld. We have no doubt that a law giving such a right imposes a reasonable restriction which is in the interest of the general public. If an outsider is introduced as a co-sharer in a property it will make common management extremely difficult and destory the benefits of ownership in common. The result of the law of pre-emption in favour of a co-sharer is that if sales take place the property may eventually come into the hands of one cosharer as full owner and that would naturally be a great advantage. The advantage is all the greater in the case of a residential house and S. 16 is concerned with urban property, for the introduction of an 9 S.A.No.43 of 2004 outsider in a residential house would lead to all kinds of complications. The advantages arising from such a law of pre-emption are clear and in our opinion outweigh the disadvantages which the vendor may suffer on account of his inability to sell the property to whomsoever he pleases. The vendee also cannot be said to suffer much by such a law because he is merely deprived of the right of owning an undivided share of the property. On the whole it seems to us that a right of pre emption based on co-sharership is a reasonable restriction on the right to acquire, hold and dispose of property and is in the interest of the general public.
12. The same reasoning in our opinion will apply to the third ground, "where the sale is of a property having a staircase common to other properties, in the owners of such properties". This ground stands on the same footing practically as the first ground relating to co-sharers, and for the same reason we hold that it is a reasonable restriction, and is in the interest of general public.
13. Turning now to the fourth ground, "where the sale is of a property having a common entrance from the street with other properties, in the owners of such properties", this ground is in our opinion similar to the third ground, the only difference being that in one case there is a common staircase while in the other case there is a common private passage from the street. The idea behind this ground seems to be that the buildings are in a common compound and perhaps were originally put up by members of one family or one group with a common private passage from the public street. In such a case the owners of the buildings would stand more or less in the position of co-sharers, though actually there may be no co-sharership in the house sold. But as we have said this case would approximate to cases of a common staircase and co-sharers; therefore, for reasons given in the case of co-sharers we uphold the right of pre-emption covered by the fourth ground in S. 16. The case falling under the fourth ground must be distinguished from Katras which are exempt from the provisions of the not in S. 5: (see Karim Ahmad v. Rahmat Elahi, AIR 1946 Lah 432)."
14. Mr. Aashish Kumar next relies upon the judgment of the Hon'ble Supreme Court of India in the case of A. Razzaque Sajansaheb Bagwan & Others vs. Ibrahim Haji Mohammed Husain reported in AIR 1999 SC 2043 and submits that in the said judgment, the Hon'ble Supreme Court of India reiterated that the law of pre-emption based on vicinage is void. It is next submitted by Mr. Kumar that as the legal heir of original holder cannot seek right of pre-emption against the second purchaser, hence, it is submitted that the impugned judgment and decree passed by the learned First Appellate Court be set aside and the judgment and decree passed by the trial court be restored.
15. Mr. Manjul Prasad- learned senior counsel for the respondents on the other hand defends the impugned judgment and decree and submits that the finding of facts recorded by the learned First Appellate Court to 10 S.A.No.43 of 2004 the effect that the plaintiffs and the defendant second party before the sale of the land to the defendant first party by the defendant second party had common amenities and appendages has reached finality and in the absence of any perversity on such finding it is not open for this Court in exercise of its jurisdiction under Section 100 of the Code of Civil Procedure, 1908 to interfere with the findings of fact by the courts below. It is next submitted by Mr. Manjul Prasad that similarly the learned First Appellate Court has returned the finding of fact of customary law of pre- emption as is prevalent in Muslims in the locality; where the suit lands are situated since long and in the absence of any perversity in such finding of fact, the same has also reached finality and the same cannot be interfered with in this appeal. It is further submitted that certainly the law of pre- emption based on vicinage is void. There is no dispute about the same but as has been held by the Hon'ble Supreme Court of India in the case of Bhau Ram vs. Baij Nath Singh & Others (supra), the advantages arising from law of pre-emption where the sale of a property having common entrance from the street with other property of the owner of such property outweighs the disadvantages which the vendor may suffer on account of his inability to convey the property to whomsoever he pleases and the same has not been held to be violative of Article 19 (i) (f) of the Constitution of India as was prevalent at that time but now with omission of Article 19 (i) (f) of the Constitution of India from the part-III of Fundamental Rights and bringing it to part-XII (Chapter-IV) in the shape of Article 300 A has lessened the right vis-à-vis other laws. It is then submitted by Mr Prasad that an established custom is law.
16. So far as substantial question of law formulated in this appeal is concerned, it is submitted by Mr. Manjul Prasad that the plaintiffs are not the legal heirs of the original land holders rather on the date of filing of the suits they were the land holders themselves. It is further submitted by Mr. Prasad that the ancestor of the plaintiffs being Jaharmal Tibriwal was the husband of the plaintiff No.1 and the father of the rest of the plaintiffs when he sold the properties to Chameli Devi who is his sister, hence, the right to pre-emption did not accrue because Chameli Devi was not an outsider rather she was a family member. But when in the year 1986, the 11 S.A.No.43 of 2004 defendant second party who are the descendants of Chameli Devi, sold the property to the defendant first party who is a stranger to the family, certainly the right to pre-emption accrued to the plaintiffs in their own right as owners of the property as well as the sharers in the appurtenance and appendages. It is next submitted by Mr. Prasad that when the sharers in appurtenance and appendages are themselves the owner of the property certainly they have the right of pre-emption against the purchaser if that purchaser is not a family member as in this case. Hence, it is submitted that this appeal, being without any merit be dismissed.
17. Having heard the rival submissions made at the Bar and after carefully going through the materials in the record, this Court is of the considered view that the finding of facts returned by the learned First Appellate Court regarding the sharing of appurtenance and appendages by the plaintiffs and the defendant second party prior to the sale of the property to the defendant first party by the defendant second party in the absence of any perversity in such finding has reached finality and so is the case in respect of finding of fact regarding the custom of pre-emption prevailing in the locality, where the suit property is situated.
18. While the question of reasonableness of the restrictions imposed by the law of pre-emption on the right to acquire and hold property is considered, the limitations inherent in the law have to be taken into account. The right of pre-emption is granted only to a limited class of persons. The qualification they must possess before they claim the right of pre-emption are:-
(a) that they must either be co-sharers in the property or
(b) be sharers in appurtenance or appendages or
(c) they must own property in its immediate vicinage.
Such right accrues only in case of real sale. It is not doubted that by now the settled principle of law is that the right of pre-emption cannot be claimed on the ground of mere vicinage. The property in question is relatively smaller considering the same is only of 6 decimals each in possession of the plaintiffs and the vendors of the land. The plaintiffs are not claiming right of pre-emption on the basis of legal heirs of original land holders rather by the time the suit was filed, they were the owner of 12 S.A.No.43 of 2004 the suit land themselves. The cause of action which gave rise to the right of pre-emption accrue only upon the defendant second party who sold the land to the defendant first party who is a stranger.
19. Under such circumstances, the sole substantial question of law as to 'whether only for the purpose of enjoying a common facility, legal heir of original land holder can seek right of preemption against the second purchaser' is answered by holding that if the custom prevalent recognizes the law of pre-emption where there is a sale of a property having a common entrance from street with other properties, certainly the owners of the property or the sharers in appurtenance or appendages can seek a right of pre-emption against the vendors of the property to a third person. The pre-emptor only gets substituted for the vendee and he has to pay the full price and gets the property subject to all its liabilities and disabilities. The restrictions put on the right of transfer or of acquiring the holding property is no doubt of very limited in nature and extent. Thus, the sole substantial question of law is answered in the affirmative.
20. In view of the discussions made above, this Court is of the considered view that there is no merit in this appeal. Accordingly, the same is dismissed on contest but under the circumstances without any costs.
21. Let a copy of this judgment along with the lower court records be sent back to the courts below forthwith.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 14th of November, 2022 AFR/ Animesh 13