Judgment

B. K. MUKHERJEA, J.

The plaintiff, who is the appellant before us, commenced the suit, out of which this appeal arises, in the court of the Civil Judge at Banaras (Being Original Suit No. 79 of 1941) for enforcement of his right of pre-emption in respect of an enclosed plot of land with certain structures upon it, situated within Mohalla Baradeo in the city of Banaras and bearing Municipal No. D37 48.

The premises in suit admittedly belonged to defendant 2 to 5 who are residents of Calcutta and they sold it by a conveyance executed on the 29th March 1941 and registered on the 3rd of April following, to defendant No. 1, also a resident of Calcutta, for the price of Rs. 7,000. The plaintiff is the owner of the two premises, to wit , premises Nos. D37/85 and D37/44, within the same Mohalla of the city of Banaras, which are in close proximity to the property in dispute and adjoin it on the northern and eastern sides respectively.

It is averred by the plaintiff that there is from very early time a custom prevalent in the city of Banaras according to which the plaintiff was entitled to claim pre-emption of the property in dispute on the ground of vicinage. It is said that as soon as the plaintiff received news of the sale, he made an immediate assertion or demand of his rights and repeated the same in the presence of the witnesses as required by Muhammadan law and he further sent a registered notice to defendant No. 1 on the 21st May 1941 asking the latter to transfer the property to the plaintiff on receipt of the price which he had actually paid to the vendors. As the defendant No. 1 did not comply with this demand the present suit was brought.

2. The defendant No. 1 alone contested the suit and the pleas taken by him in his written statement can be classified under four heads.

In the first place, he denied that there was any custom of pre-emption amongst non-Muslims in the city of Banaras as alleged by the plaintiff.

The second plea taken was that even if there was any custom of pre-emption it could not be availed of in a case like this where neither the vendors nor the vendee were natives of or domiciled in Banaras but were residents of a different province.

The third contention raised was that even if there was any custom of pre-emption it could not be availed of in a case like this where neither the vendors nor the vendee were natives of or domiciled in Banaras but were residents of a different province.

Lastly, it was contended that as the plaintiff himself was the landlord of the property in suit and the vendors were his tenants, he could not, under any law or custom, eject his own tenants by exercise of the right of pre-emption.

3. The Civil Judge who tried the suit held, on the evidence adduced in the case, that there was in fact a custom of pre-emption in the city of Banaras, the incidents of which were the same as in Muhammadan law. He held however that the custom being a local custom it could not be enforced against either the vendors or the vendee in the present case, as none of them were natives of or domiciled in Banaras.

The trial judge also found that the plaintiff did not make the requisite demands which are mandatory under Muhammadan law. The result was that the plaintiffs suit was dismissed and in view of the findings arrived at by him, the Civil Judge did not consider it necessary to decide the question as to whether the plaintiff being himself a landlord could assert any claim for pre-emption against his tenants on the basis of a custom.

4. Against this decision the plaintiff took an appeal to the High Court of Allahabad which was heard by a Division Bench consisting of Mulla and Yorke, JJ. The learned Judges agreed with the trial court in holding that although there was a custom of pre-emption in the city of Banaras, yet the necessary condition for enforcing the custom in that locality was that the vendor and the vendee must be native of or domiciled in the city. As this condition was not fulfilled in this case