IMPORTANT POINT
Plaintiff being a co-sharer has acquired right of pre-emption over the suit property and, therefore, is entitled for a decree.

JUDGMENT

Phukan, J.-This appeal arising out of judgment of the High Court of Judicature at Allahabad is by the plaintiff. The parties shall be referred to as arrayed in the suit. The facts are as follows :-

The suit property originally belonged to one Sakhawat Ali. The property is situated in the village Sakrawal. A part of the village was included within the municipal limit of the town of Tanda. Sakhawat Ali transferred the suit property to his wife in lieu of dower debt and the same was sold in the year 1951 to one Mohd. Makin, predecessor of the defendant-respondent who was a stranger to the village. The plaintiff-appellant being a co-sharer filed the present suit claiming right of pre-emption. The suit was contested on the grounds inter alia that only the house was sold and not the land over which plaintiff could have exercised his right of pre-emption and that right of pre-emption ceased to be available once the suit property fell within the limit of municipality of Tanda. The trial Court decreed the suit holding that the transfer in question was not confined to the house alone but extended also to the house-site. Relying on four judgments of the courts of the munsif and the subordinate judge for the years 1915, 1924 to 1926, the trial Court also held that such a right of pre-emption existed even after the suit property was included within the municipal limit of Tanda. Before the first appellate court a dispute was raised as to whether the suit property was situated within the town of Tanda. The court on the basis of the report of the Commissioner gave a finding that on the date of transfer of the suit property the part of the village on which the suit property a part of urban agglomeration by being included within the municipal limits of the said town and this finding has become final. The first appellate court dismissed the appeal. The High Court allowed the second appeal filed by the defendants by the impugned judgment holding inter alia that the custom relating to pre-emption was not available in the town of Tanda and that the plaintiff could not prove the right of pre-emption of a co-sharer in respect of suit property.

2. Admittedly, Oudh Lands Act 1876 is applicable to the suit land. The Chapter II deals with right of pre-emption. We may extract below clause (b) of Section 7 and Section 8 of the said Act, which are relevant for the present purpose :

"7. Presumption as to its existence.-Unless the existence of any custom or contract to the contrary is proved, such right shall, whether recorded in the settlement-record or not, be presumed.

(a) .................

(b) to extend to the village-site, to the houses built upon it, to all lands and shares of lands within the village-boundary, and to all transferable rights affecting such lands.

8. Its existence in towns to be proved.- The right of pre-emption shall not be presumed to exist in any town or city, or any sub-division thereof, but may be shown to exist therein and to be exercisable therein by such persons and under such circumstances as the local custom prescribes."

3. Section 7(a) speaks of a village-site and house built upon it and according to the said section existence of customary right of pre-emption can be presumed whether recorded in a settlement record or not. But under Section 8 right of pre-emption shall not be presumed to exist in any city or town and the person claiming such right of pre-emption in such area has to show and prove existence of such customs and such circumstances as the local customs prescribes.

4. The customary right of pre-emption has not been looked upon favourably as it operates as a clog on the right of the owner to alienate the property but in view of Sections 7 and 8 of Oudh Laws Act, 1876, legislative recognition has been given to customary right of pre-emption in the area where suit land is situated, the only difference is that in respect of customary right of pre-emption over a village site and house