IMPORTANT POINT
The main legal point established in the judgment is the strict interpretation of the requirements for pre-emption under the Mahomedan Law, particularly the immediate demand of jumping as per Section 236.

JUDGMENT :

HARISH TANDON, J.

1. An interesting point is raised by the appellant in the instant appeal on the nuances of the principles of pre-emption under the Mahomedan Law. Though the instant appeal arises from an order dated 27.02.2023 passed by the learned Civil Judge (Senior Division), 1st Court, Howrah in TS 73 of 2021 by which an application for injunction was allowed restraining the appellant from alienating, transferring or creating any third party interest in respect of the suit property and also from changing the nature, character and possession thereof but the point is taken by the said defendant no. 1/appellant on the intricacies of the pre-emption recognised under the Mahomedan Law and the mode and manner in which it is so exercised.

2. The facts, so unfurled, reveal that the Title Suit No. 799 of 2021 is filed by the plaintiff-respondent seeking a decree for pre-emption in respect of the scheduled properties and permanent injunction restraining the principal defendant, the men and agents for taking peaceful possession of the suit property and also from changing the nature and character thereof, on the fact that by a registered deed of sale dated 30th June, 2005 the plaintiff along with his brother Md. Rashid jointly purchased 1 Bigha 14 Chittaks 15 Sq. Ft. comprising of the structure standing thereupon together with another land measuring 6 Cottahs 1 Chittaks 5 Sq. Ft. with the structure in a separate holding within the district of Howrah. The aforesaid two premises were subsequently amalgamated and the brother namely Md. Rashid later on executed a registered deed of gift transferring his undivided share in favour of his wife namely, Rubina Rashid. Subsequently, the said Rubina Rashid executed a registered deed of sale in favour of the principal defendant, the appellant herein on 19th August, 2021. It is alleged that the aforesaid sale-deed was executed without any prior intimation to the plaintiff and the appellant being a stranger purchaser suddenly came to the scheduled property on 17.10.2021 along with the men and agents and some labourers and tried to change the nature and character of the best portion of the suit premises by raising a pucca structure on the strength of the ownership which he acquired by said sale-deed. It is thus alleged that the property being undivided and joint, the plaintiff for the first time on 15.11.2021 was made aware of the sale effected by the said Rubina Rashid and the same day being made known to such sale, the plaintiff-respondent declared their intention to assert the right of pre-emption and demanded to pre-empt the said scheduled property by jumping thereupon against the said erstwhile owner. On 16.11.2021 the plaintiff-respondent made a search about the execution and registration of the purported deed of sale through online with the help of the lawyer and came to know that the said deed was executed in favour of the appellant and on the same day the plaintiff was also served with the copy of the plaint as well as injunction application in connection with the title suit no. 1167 of 2021 filed by the appellant as well as her husband namely Md. Shahzada against them and, therefore, for the first time they came to know about the execution and registration of the purported sale-deed in their favour by the said Rubina Rashid and on being aware of the same the certified copy of the purported deed of sale was obtained through online. On 2nd December, 2021 the appellant with someone known surveyor came to the scheduled property declaring that they have purchased the suit premises and therefore they intended to demarcate the possession therein and immediately the plaintiff-respondent made a demand of pre-emption on the very same day by uttering the words “where it claim our shufaa” as we are a shaffee in respect of the larger property. The said claim was made in the presence of two witnesses who were present at the material point of time and subsequently on the same day the appellant o