The main legal point established in the judgment is that the plaintiff's claim of pre-emption based on being a co-sharer and a participator in the immunities and appendages of the suit house was not valid under the customary law of pre-emption among Hindus in the State of Bihar.

This appeal has been filed against the judgment and decree dated 9th September, 1982 passed by the Second Additional Sub-Judge, Bhagalpur in T.S. Nos. 28/78/34/82 whereby the plaintiff has been granted the decree of pre-emption to repurchase the house described in Schedule-I of the plaint from the defendant first party after payment of the consideration amount of Rs. 10,000/- of the earlier sale deed dated 11.11.1996.

2. The relevant facts, as uncurtained in this appeal, are that Babu Sakhichand was the owner of a residential house in Sakhichand Ghat Road in Mohalla-Nayabazar, Bhagalpur as well as other properties. The predecessors of the plaintiff, the defendant 1st set and the defendant 2nd set were the sister's sons' of Babu Sakhichand and had inherited his properties after his death. Later on, there had been partition by metes and bounds among them with regard to those properties through a registered deed of partition dated 16.7.1954. In that partition, Babu Brijchand, the father of the plaintiff, was allotted the northern portion of the residential house described in Schedule-I of the deed and his brother Krishan Chand, the predecessor of the defendant 2nd set was allotted the southern portion of the residential house described in Schedule-II of the deed. The another brother, Radha Krishna Chand, the predecessor of the defendant 1st set was not given a share in the residential house but was allotted other properties as mentioned in Schedule-III of the deed. However, some land lying in between the northern portion and southern portion of the residential house and drain in the wast was left in common and it was agreed between the father of the plaintiff and the predecessor of the defendant 2nd set, who were allottees of the northern portion and southern portion of the residential house, that the said land would be used by them for opening doors, windows, flow of rain water, common passage as well as for construction of drain.

3. By the sale deed dated 11.11.1976 (registered on 10.3.77), the defendant 2nd set sold the southern portion of the residential house to the defendant 1st set, which is the suit properties fully described in Schedule-I of the plaint. The case of the plaintiff is that he is a participator in immunities and appendages to the suit house being co-sharer in the common land and drain and therefore has a preferential right to repurchase the suit house on that basis and also on the basis of being a co-sharer. It is also the case of the plaintiff that after getting the knowledge of the sale deed on 2.2.1978, he, on the same day, performed talab-i-mowasibat asserting his preferential right of purchase and soon thereafter, he made' enquiries and went to the suit house and made the demand (talab-i-ishhad) asserting his right of pre-emption, in presence of witnesses. The suit has, thus, been filed by the plaintiff for enforcing his right of pre-emption.

4. The defendant no. 1 (now deceased through L.R.) filed his written statement controverting the assertions of the plaintiff. The defendant no. 2 also filed his separate written statement. From the statements made in the written statements of both the defendants, it transpires that the plaintiff, the defendant no. 1 as well as defendant no. 2 are all grandsons of late Harakh Chand. The partition of the year 1954 by a registered deed between three sons of late Harakh Chand has been accepted but on that basis, it has been also asserted that the plaintiff is not a co-sharer of the defendants. It has further been accepted that in the said partition, the northern part of the residential house was allotted to the share of the plaintiff's father and southern part of the said house was allotted to the father of the defendant no. 2. It has also been accepted that a common passage and a drain were left for the use of the plaintiff and defendant no.2. But any right of the plaintiff either by way of easement 'or otherwise over the suit house, sold to the defendant no. 1 b