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4. The defendant No. 1 appellant, who alone contested the suit, alleged that there was no such custom of pre-emption and in any case the plaintiff-respondent was not Shafi-i-Sharik as the wall was separate and he was also not Shafi-i-Khalit.

5. The learned Trial Court held that there was no joint wall and so he was not Shafi-i-Sharik. He also held that there would be no pre-emption on the ground of easementary right of light and air as it was an unreasonable restriction and so void. He, however, held that the plaintiff-respondent was Shafi-i-Khalit on account of his being a servient tenement holder due to the owner of the shop having a right of easement of flow of water through his house and there was a custom for pre-emption for such persons, accordingly he decreed the suit.

8. So far as the first point is concerned, the contention of the learned counsel for the appellant is that being a servient tenement holder the plaintiff-respondent has no right. He only has a duty to allow the right of the dominant tenement holder to be performed. This contention is not correct. The expression "Shafi-i-Khalit" is not concerned with the rights and duties. It only denotes those who share in the appendages of the property. This is not disputed that the dominant tenement holder is Shafi-i-Khalit. It implies that he shares an appendage with the other person who is a servient tenement holder. Therefore, both the dominant tenement holder and the servient tenement holder are Shafi-i-Khalit.

9. In Ladu Ram v. Kalyan Sahai (AIR 1963 Raj 195) the definitions of the word "Shafi-i-Khalit" given by Sir Roland Kayvet Wilson in "A Digest of Anglo-Muhammadan Law" and Tyabji in Muhammadan Law have been quoted. They showed that both the dominant tenement holder as well as servient tenement holder are shown to participate in their appendages and as such are Shafi-i-Khalit. Of course in that case persons claiming easements other than those of right of way or discharge of water were not held to be Shafi-i-Khalit but that is a different thing. For this case which deals with the easement of discharge of water, both are Shafi-i-Khalit.

11. In Mahboob Hasan v. Ram Bharos Lal (1965 All LJ 1178) : (AIR 1966 All 271) this question came up for consideration whether custom of pre-emption as regards Shafi-i-Khalit was void being not reasonable according to this Sub-clause (5) of Article 19. It was held that no general opinion could be given about ell kinds of Shafi-i-Khalits. In that case the question of custom of pre-emption about Shafi-i-Khalit concerning dominant tenement holder was in issue and it was held that it was void being unreasonable restriction on the rights of the property of citizens of India. About other kinds of Shafi-i-Khalits, it was observed that it would depend upon the nature of claim in each case.