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HARISH TANDON, MADHURESH PRASAD
Md. Shahzada – Appellant
Versus
Md. Arif – Respondent
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 plai
Right to Pre-emption – Just being owner of adjacent property does not give rise to pre-emptive right based on vicinage.
The court held that pre-emption based on vicinage is unconstitutional, and disputes regarding pre-emption rights necessitate a full trial due to the involvement of mixed questions of law and fact.
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