BERI, J.—This second appeal is directed against the judgment and decree of the Senior Civil Judge, Jaipur District Jaipur, dated 19th August, 1958, whereby he rejected the appellants claim for pre-emption.

2. The dispute relates to a Nohra (an enclosed plot of land with few or no constructions) situate in the City of Jaipur. This was sold by Surendra Singh on 28-4-1953 for Rs. 1999/- to Kalyan Sahai. Laduram claiming a right to pre-empt instituted a suit on the grounds (a) that the Nohra adjoins his property on northern side and (b) that his windows and sky-lights from 1st storey to the 4th open towards the Nohra. Technically the basis of the claim was "Shafi-jar", pre-emption on the ground of vicinage and "Shafi-Khalit"—participators in common appendages—as known to the Mahomedan Law. The Munsiff Jaipur District who tried the suit found that the right of pre-emption by custom was recognised in the city of Jaipur; that this right on the ground of vicinage was no longer available in view of the fact that it was held to be ultra-vires the Constitution in Shankarlal vs. Poonamchand (1) that the right to pre-empt on Shafi-Khalect did not accrue to the plaintiff on his alleged right of light and air and he therefore dismissed the plaintiffs suit. An appeal was taken to the Senior Civil Judge, Jaipur District, Jaipur who also found that the right of Shafi-Khaleet did not arise on the basis of the right of light and air and dismissed the appeal. Therefore, the plaintiff has now come up in second appeal.

3. It is common ground that the right of pre-emption is recognised in the city of Jaipur as a custom in accordance with the principles of Mahomedan Law. It is also no longer in dispute that in view of the decision in Panch Gujar Gaur Brahman vs. Amar Singh (2), which has been approved by their lordships of the Supreme Court in Bhau Ram vs. Baijnath Singh(3) a claim for pre-emption on the ground of vicinage is no longer valid being repugnant to the fundamental right guaranteed under Art. 19(l)(f) of the Constitution of India. The one and only question which calls for decision is whether the concept of Shafi-Khaleet includes within its ambit the rights of easement of light and air arising from the existence of windows and sky-lights in the property of the plaintiff and opening towards the Nohra in question.

4. Learned counsel for the appellant and respondents have frankly conceded that there is no reported case available directly deciding the precise point arising in this case. This necessitates the examination of the first principles touching the doctrine of Shafi-Khaleet.

5. Khaleet literally means mixed up. Shafi-Khaleet is a participator in appendages. Baillie says that though rights of water and way are given as examples of "Shafi-Khaleet" it does not appear that a Khaleet in any other right than these has the right of pre-emption—See Baillie I page 476(481). Wilsons Anglo Muhammadan Law Sixth Edition, 1930, p. 393, states,—

"Owners of property connected with the property in question through some right in the nature of an easement, whether such easements be attached to both properties as dominant tenements as against a third property, or to one of them as dominant against the other as servient tenement. Such persons are called "participators in the appendages."

Tyabji in his Muhammadan Law, Third Edition p. 708 summarises the position thus,—

Sec. 541-B. —"By the khalit or participator in appendages, is meant the owner of property to which is annexed or on which is imposed a private right of way or of water or other easement or appendage such right being also annexed to or imposed upon, the subject of pre-emption. This definition is subject to sec. 541-D, 541-F and 541-G."

The material paragraph for the purposes of this case is 541G which reads :—

Sec. 541-G.—"If the owner of the subject of pre-emption and the claimant participate in the beneficial enjoyment of a private right of way or water or other appendage, or easement : see sec. 541-B

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