Rajasthan High Court - Jaipur
Ladu Ram vs Kalyan Sahai And Anr. on 11 April, 1963
JUDGMENT B.P. Beri, J.
1. This second appeal is directed against the judgment and decree of the Senior Civil Judge, Jaipur, District Jaipur, dated 19th August, 1958, whereby he rejected the appellant's claim for pre-emption.
2. The dispute relates to a Nohra (an enclos-to plot of land with few or no constructions) situate in the City o£ Jaipur. This was sold by Surendra Singh on 28-4-1953 for Rs. 1999/- to Kalyan Sahai. Ladnram claiming a right to pre-empt instituted a suit on the grounds (a) that the Nohra adjoins his on northern side and (b) that his windows and sky-lights from Ist storey to the 4th open to-towards the Nohra. Technically the basis of the claim was "Shaft-jar", pre-emption on the ground of (sic) and "Shafi-Khalit" -- participators in common appendages as known to the Mahomedan Law. The Munsiff Jaipur District who tried the with found that the right of pre-emption by custom was recognised in the city of Jaipur; that this right on the ground of vicinage was no longer available in view of the fact that it was held to be ultra vires the Constitution in Shankarlal v. Poonamchand, 1954, Raj LW 292: (AIR 1954 Raj 231) that the right to pre-empt on 'Shafi-Khaleet' did not accrue to the plaintiff on his alleged right of light and air and he therefore dismissed the plaintiff's suit. An appeal was taken to the Senior Civil Judge, Jaipur District, Jaipur who also found that the right of Shafi-Khalest did not arise on the basis of the right of light and air and dismissed the appeal. Therefore, the plaintiff has now come up in second appeal.
3. It is common ground that the right of premption is recognised in the city of Jaipur as a custom in accordance with the principles of Mahomedan Law. It is also no longer in dispute that in view of the decision in Panch Gujar Gaur v. Amar Singh, ILR (1954) A Raj 84: (AIR 1954 Raj 100) (FB) WHich has been approved by their Lordships of the Supreme Court in Bhau Ram v. Baij Nath-singh, AIR 7962 SC 1476 a claim for pre-emption on the ground of vicinage is no longer valid being repugnant to the fundamental right guranteed under Article 19(1)(f) of the Constitution of India. The one and only question which calls for decision a whether the concept of 'Shafi-Khaleet' includes within its ambit the rights of easement of light and air arising from the existence of windows and skylights in the property of the plaintiff and opening towards the Nohra in question.
4. Learned counsel for the appellant and respondents have frankly conceded that there is no reported case available directly deciding the precise point arising in this case. This necessitates the examination of the first principles touching the doctrine of 'Shafi-Khaleet'.
5. 'Khaleet' literally means 'mixed up'. Shafi-Khaleet is a 'participator in appendages', Baillie says that though rights of water and way are given as examples of "Shafi-Khaleet" it does not appear that a Khaleet in any other right than these has the right of pre-emption. See Baillie I page 476 (481). Wilson's Anglo Muhammadan Law Sixth Edition, 1930, p. 393, states.-
"Owners of property connected with the property in question through some right in the nature of an casement, whether such easements be attached to both properties as dominant tenements as against a third property, or to one of them as dominant against the other as servient tenement. Such persons are called "participators in the appendages".
Tyabji in his Muhammadan Law, Third Edition p. 708 summarises the position thus,--
Section 541B.-- "By the khalit or participator in appendages, is meant the owner of property to which is annexed or on which is imposed a private right of way or of water or other easement or appendage such right being also annexed to, or imposed upon, the subject of p re-em ptiQn. Thus definition is subject to Sections 541D, 541F and 541G". The material paragraph for the purposes of this casa is 541G only which reads :
Section 541G.-- "If the owner of the subject of pre-emption and the claimant participate in the beneficial enjoyment of a private right of way or water or other appendage, or easement : see Section 541B each becomes the khalit of the other, though the properties owned by them may not be mutually dominant and servient heritages, where the appendage consists of an easement, it need not have become absolute by having been peaceably enjoyed during the period of prescription".
Ameer Ali in his Mahornmedan Law, Vol I Third Edition, page 600 states: on the question of preemption as follows :
"It appertains (1) to the co-sharer in the property, called a shafi-i-sharik, pre-emptor by right of co-parcenary; (2) to a sharer in the rights and appurtenances, called a shafi-i-khalit, -- 'a pre-emptor by virtue of a right of easement over the property sold; (3) to a neighbour, or shafi-i-jar, 'pre-empton by right of vicinage".
6. While the wellknown work Baillie's Digest of Muhammadan Law which is based on the authority of Fatwah Alamgir, prefers to restrict the connotation of the term 'Shafi-Khalit' merely to the rights of way and water the author of "A Digest Anglo-Muhamrnadan Law" -- Sir Roland Knyvet Wilson, appears to have generalised it by using the expression 'through some right in the nature of easement". The decided cases he has discussed on this aspect of the matter are mainly Karim v. Priyo Lal Bose, ILR 28 All 127 and Baldeo v. Badu Nath, ILR 31 All 519 and Karim's case, ILR 28 All 127 related to the pre-emption of a house situate in Benares, as it was then spelt. The pre-emptor's house was on the north of the house in dispute and that of the vendee in the south. The pre-emptor claimed his right to pre-empt on the grounds (a) that the apertures of the pre-emptor's house opened towards the house in dispute and (b) that the water from the eves of the pre-emptor's house falls on the house in dispute. He, therefore, claimed a preference over the rights of the vendee whose claim rested on the ground of vicinage only. While summing up his claim it was urged that he enjoyed rights of easements over the house sold. Banerji, J. held as follows:
"As the plaintiff in the present case has the right of flow of water over the disputed property he has the right of pre-emption as a khalit, and has priority over the vendee, who is only a neighbour".
The learned Judge did not decide the pre-emptor's claim on the footing of the right of easement arising from existing apertures.
In Baldeo's case, ILR 31 All 519 the dispute again related to a house situate in Benares. The house of the pre-emptor discharged water on the property sold and this latter and the house of the vendee discharged water on a lane intervening between the two houses -- and the property sold. Thus both the pre-emptor and the vendee were sharers in the immunities and appendages (Shafi-Khalit) and, therefore, one had no preference over the other. This case also did not endeavour to lay down any general proposition that easements of all kinds created any right in the nature of Khalit. It merely dealt with a case of drainage of water and held that no particular period was prescribed in Muhammadan Law for the acquisition of an immunity for discharging water or right of way.
7. Tyabji in his paragraph 541B employs the clause "or other easement or appendage" on the basis of Aziz Ahmad v. Nazir Ahmad ILR 50 All 257 which has laid down that branches of a tree projecting over the land of neighbour do not give the owner of the tree any right of Shafi-Khalit. This case does not authorise the learned author to embrace easements other than that of way and water within the ambit of the doctrine of Khalit. On the other hand Sulaiman and Banerji JJ. who decided this case quoted Baillie's Mahomedan Law Volume I, the same passage which I have noticed earlier in this judgment and on that authority rejected the appellant's claim based on the overhanging branches of his tamarind tree.
8. Although Ameer Ali puts the words "a pre-emptor by virtue of a right of easement over the property sold'' in inverted comas either because it is a translation of the expression 'shafi-i-khalit' or a quotation he does not quote the source from which either this translation or the excerpt has been taken. At any rate he does not say that the right of easement of every variety over the property sold confers the right of preemption.
9. Thus the widening of the scope of Khalit to easements other than that of way and water seems to have been done by Wilson and is neither supported by Baillie nor by the decided cases of the Allahabad High Court to which reference has been made by the learned authors,
10. The learned counsel for the invited my attention to some other decided (sic) which I might as well mention. In Chand Khas v. Naimat Khan 12 Suth W R 162 water was accustomed to flow a certain dighee to the plaintiffs' land and from there to the land in dispute. It was held that the plaintiff was a participator in the appendage and entitled to pre-empt on the basis of 'Khuleet' . In Ranchod Das v. Jugaldas ILR 24 Bom 414 it was held that the right of lateral support was not aa appendage to property falling within the class 'Khaleet'. In this case easement of support was not recognised as one included in the category of Khaleet. In Shivshanker Chhaganlal v. Laxman Chimanlal. AIR 1943 Bom 83 it has been observed by Divatia J. that "under the Mahornedan law a person who is a participator in immunities and appendages such as a right of way or a right of discharge water has got a preferential right to another person who may simply be owner of adjoining property without having easement rights over the suit property".
The learned Judge has employed practicality the same language as Baillie and in fact what be was called upon to consider was the competitive claim between the second and third class of In Abdul Rahman v. Mohd. Ismail. AIR 1947 All 85 it was held that the right of pre-emption arises from right of way and right to dis-charge water. This right depends on the Easements Act in India and does not depend on isolated user. In this case as well no other kind (sic) easement was considered.
11. None of these cases appear to support the wide view that the right of pre-emption of that cfass of 'Khalit' can arise from the existence of easement other than those relating to right of way and the right to discharge water. Rather the cases of Ranchoddas, ILR 24 Bom 414 and Abdul Rahman, AIR 1947 All 85 clearly sug-.gest a view to the contrary. The right of preemption is in the very nature of things a reatrio-tion on the right to acquire, hold and dispose of property and in the context of the liberties guaranteed by the Constitution of India I am not in-clined to give a wider connotation to the term Khaleet than that which Baillie adopted and Allahabad High Court has accepted merely because some text writers have chosen to tend it an amplitude unauthorised by precedents, In my opinion, therefore, the plaintiff-appellant before me even though he may have had right of light or air over the Mohra, -- and I am not deciding whether he had or he had not such a right -- on that account he cannot claim a right to pre-empt.
12. The result is that this appeal fails and is dismissed with no order as to costs.
13. Learned counsel for the appellant prays for leave to appeal. Leave is allowed.