Judgement

WANCHOO, CJI. :- The main question raised in this appeal by special leave is whether Parjoti land (i. e. a permanent lease-hold interest) in the city of Benaras can be pre-empted. The respondent brought a suit for pre-emption of the land in dispute, which was sold under a sale deed dated February 6, 1942. The case of the respondent was that he was owner of a house and land to the south of the property sold. He based his claim to pre-emption as a shafi-i-jar (i. e. pre-emptor by right of vicinage) and also as a shafi-i-khalit (i. e. pre-emptor by right of appendages). His case was that there was such a custom of pre-emption prevailing in the whole of the city of Benaras and therefore he was entitled to pre-empt the property sold which was a khandar (i. e. a house in ruins). The plaint made the usual allegation that the necessary talabs had been performed and the respondent was entitled to pre-empt the sale.

2. The suit, was resisted by the vendee, whose legal representative is the appellant before this Court. The vendee denied that there was any custom of pre-emption in the city of Benaras, and particularly, in the mohalla in which the property in dispute was situate. It was